EC & Compelling Interest

[Brian Landsberg]

Wouldn't this line of analysis lead to the conclusion that the government may establish a religion so long as it can show that most constituents want an established religion?  

I don't think that community desires alone can ever be a compelling interest.

>>> Rick Duncan <nebraskalawprof at yahoo.com> 7/22/2007 4:44 PM >>>
When the Ct strikes down a law under the EC, it usually declares the law unconstitutional w/out any type of "scrutiny." Why doesn't the Ct at least go through the motions of applying the compelling interest test? Is the EC an absolute, categorical rule prohibiting laws that establish religion?
   
  Take the Nativity display in Allegheny County--should the county govt argue that it has a compelling interest in recognizing that many persons are willing recipients of the county's speech recognizing that some of its citizens are celebrating a religious holiday on Dec 25? Why should the Pl, whose liberty is not in any way restricted by a passive holiday display, have the right to censor a display that means a great deal to others in the community who wish to view the display? Why not at least analyze the compelling interest test in cases like these?
   
  I have always assumed that the EC here is a structural limitation on the power of govt, one that denies govt the power to "endorse" religion even if it has good reasons to put up the display.
   
  Am I wrong?
   
  Rick Duncan

"Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:
          Rick asks an excellent question; the doctrinal answer seems to be that some behavior -- such as coercion of religious practice -- is categorically unconstitutional, with no strict scrutiny exception, but the Court often talks about rights as being absolute and then turns around and sets up some strict scrutiny exception (even if it concludes that exception is inapplicable).  Compare, e.g., Everson's talk of no preference among religions with Larson v. Valente's strict scrutiny for denominational discrimination (under the Establishment Clause, in fact).
   
      The tough question is to come up with a concrete example of where some compelling interest would indeed be in play.  Rick, what examples did you have in mind?
   
      Eugene
   
      

      
---------------------------------
  From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest


  
  A question for this august body of learned friends:
   
  When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it?
   
  Does it matter what kind of EC violation the state has committed?
   
  Cheers, Rick Duncan




    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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  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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