Victory for prayer in Jesus name?

[Rick Duncan]

I agree with Christopher that the complaint about lack of injury in EC cases goes more to substance than to standing. I am writing an article on Justice Thomas and "partial incorporation" of the EC (EC incorporated not as a structural limitation on the power of state govt, but only to the extent that it protects individual liberty interests against substantial burdens or deprivations) and here is an excerpt from a working draft of my article that relates to some of what we have been discussing lately (footnotes omitted):
   
  Although Justice O’Connor has tried to explain the endorsement test as a rule designed to protect an individual’s right not to feel like an outsider or a disfavored member of the political community, this view amounts to nothing more than an unconvincing attempt to portray a structural limitation on state government speech as a spurious right to censor public displays that one finds offensive. Why should we think that liberty under the Establishment Clause includes the right to control which holidays state governments may celebrate and which ideas state governments may express? This is an extraordinary "liberty," unlike any other liberty incorporated by the Fourteenth Amendment.
   
  For example, no one would argue that the Free Exercise Clause protects a person’s right to censor public displays that offend his sincerely held religious beliefs. Thus, A does not have a First Amendment right to enjoin a "gay pride" display in a public park because it offends his religious beliefs and sends a message to him that he is an outsider and a disfavored member of the political community. A’s remedy is to avoid the offensive display or to avert his eye when walking past it. Similarly, B should not have a First Amendment right to enjoin a Christmas display that she finds offensive. The incorporated Establishment Clause protects individual liberty from substantial burdens imposed by state action, but there is no liberty to not be offended by government speech in the public square. Indeed, a rule cleansing religious displays from the public square actually promotes the evil it seeks to avoid, because by singling out religious displays for exclusion from the public
 culture the Court is sending a message that people of faith are outsiders, disfavored members of the political community whose holidays and ideas may not be recognized and celebrated in a public square that includes everyone else. As Steven Smith argues, if religious symbols and holidays are cleansed from the public square, many religious citizens may "feel that their most central values and concerns—and thus, in an important sense, they themselves—have been excluded from a public culture devoted purely to secular concerns."
   
  In order to succeed in an Establishment Clause case brought against state or local government, the claimant should be required to demonstrate that the challenged law or policy substantially burdens an individual liberty protected under the Clause. The kind of "psychic harm" one experiences when government endorses a controversial idea or symbol in the public schools or upon the public square does not impose a substantial burden on an incorporated Establishment Clause liberty, unless a dissenter is compelled to affirm his belief in the offensive idea. If A has no right to forbid the teaching of evolution in the public schools because that lesson is offensive to his religious beliefs protected under the Free Exercise Clause, then B has no right to forbid the teaching of intelligent design in the public schools because that lesson is offensive to his liberty protected under the Establishment Clause. Since the structural component of the Establishment Clause limiting the
 power of the states to endorse or advance religion is not subject to incorporation, the merits and wisdom of education in the public schools are for school boards and state legislators—not federal judges—to determine, so long as individual liberty under the First Amendment is not substantially burdened.
   
  That is only a small excerpt of my piece on Thomas and partial incorporation, but suffice it to say that I believe his views about incorporating the EC only to the extent that it protects individual liberty against substantial deprivations are very powerful and convincing.
   
   
  


 


  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.


       
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