"Political divisions along religious lines"

[Volokh, Eugene]

	But the battles over secondary questions, as best I can tell,
tend to be quite low-profile.  A few people care fairly deeply; most
don't.  What's more, the battles happen in relatively few places.  A
Supreme Court decision invalidating legislative prayer everywhere in the
country, notwithstanding the tradition going back to the First Congress,
would become notorious and would continue to be notorious -- like the
school prayer decision, but probably more so, because the contradiction
with the revealed views of the Framers would be even stronger.  Like a
decision striking down the Pledge of Allegiance, it would become an
emblem of the culture wars, and something that I suspect would
substantially exacerbate those culture wars.

	Eugene


> -----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, Eugene; 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
> 
> 
> 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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