"Political divisions along religious lines"

[Christopher Lund]

I agree with this, but your account only talks about the divisions
caused by the first decision.  Striking down legislative prayer would
indeed be controversial, more so than approving it.  I think that may be
part of why Marsh took the road it did.

But, as we've seen, approving legislative prayer means having real
battles over secondary questions -- over who will get to pray and what
they will get to say.  Those are nasty fights.  To me, they are the most
perfect proof that the holding of Marsh was dead wrong.  For they
demonstrate, don't they, that whether or not legislative prayer is
considered a religious establishment by the Court, the people surely
view it that way.  For whatever else, legislative prayer certainly bears
that central hallmark of religious establishments -- the willingness to
fight tooth and nail for control of it.


Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
>>> VOLOKH at law.ucla.edu 07/25/08 11:34 AM >>>
	If the Establishment Clause was indeed supposed to prevent
"political divisions along religious lines," what do we think would
cause more such divisions -- legislative prayer allowed under Marsh
(which irks many law professors, but likely a small minority of
conservative Christians and a small minority of atheists, agnostics, and
members of minority non-Christian religions) or the dissent's position
in Marsh?  Acceptance of the Pledge of Allegiance with "under God," or a
Court decision striking down the Pledge?  

	My sense is that on balance the Court's Establishment Clause
government speech jurisprudence has caused much more political divisions
along religious lines than it has prevented -- but the
Brennan/Marshall/Stevens view would have caused vastly more such
divisions.  Now perhaps that shouldn't matter, because we should let
justice be done (assuming that justice somehow demands an end to
religious speech by the government, a theory that strikes me as
unproven) though the heavens fall.  But if the goal of the Establishment
Clause is indeed to prevent political divisions along religious lines,
it seems to me that Scalia et al. would accomplish that best (at least
in their views of government speech), O'Connor's and Breyer's views are
a weak second, and the Brennan/Marshall/Stevens is what would be an
"utter[] fail[ure]."

	Eugene


Chris Lund writes:
 
> "That kind of jockeying for government recognition of particular
> denominations-- or for an implicit government statement 
> rejecting supposed antireligious views-- seems to be just the 
> kind of political divisions along religious lines that the 
> Establishment Clause was supposed to prevent."
> 
> Yes indeed to Professor Friedman's statement, and (I would 
> add) it's also the sort of divisions that Marsh itself was 
> trying to prevent.  I tend to see Marsh as an earlier Van 
> Orden -- government gets to act religiously, but not too 
> much.  Breyer says in Van Orden that upholding the momument 
> (not striking it down) is the best way to avoid "religiously 
> based divisiveness."  I bet Marsh court had a thought or two 
> along those lines -- that the best way to keep the peace was 
> by approving legislative prayer with some (what it thought to 
> be modest) strings attached. 
> 
> Can we all agree that Marsh has utterly failed in this regard?
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