"Political divisions along religious lines"

[Brownstein, Alan]

I think there is also a difference between legislative prayer at the State or congressional level and prayer at the city council or school board level. The latter is more up close and personal and has far more coercive implications for citizens (as opposed to legislators). It may be that Marsh is not all that divisive at the state legislative level -- but causes much more of a problem at the local level.

Alan Brownstein
UC Davis School of Law

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Friday, July 25, 2008 10:26 AM
To: VOLOKH at law.ucla.edu; religionlaw at lists.ucla.edu
Subject: Re: "Political divisions along religious lines"

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