"Political divisions along religious lines"

[Christopher Lund]

It's true that the battles over the secondary questions have been
limited (although some, like Hinrichs v. Bosma, have been the source of
some controversy).  But part of it may be that nothing has reached the
Supreme Court yet, and so there's no nation-wide, high-profile
definitive rule that people read about in the papers.  Say the Supreme
Court takes the case, and holds legislative prayer in Jesus' name
unconstitutional.  This would cause a serious culture war problem too,
wouldn't it, maybe on the order of striking down legislative prayer
altogether?  Committing it all to the political branches is the other
solution.  It would keep the problems and divisions local and out of the
public limelight -- but they will still exist.  Minority listeners
attending meetings will still feel aggrieved; perhaps candidates in
local elections would start to run on prayer-related questions. 

I didn't mean to suggest that striking down legislative prayer was the
least controversial of the Court's options.  But I do think that if the
Supreme Court lets government speak religiously, there is a natural push
for people to want it to speak religiously as much as possible, and in
the particular way they want.  Eventually, someone in the government
(whether the courts or otherwise) will have to decide what gets said and
who gets to say it.  

And I can't help but think that if we didn't let government speak
religiously, people wouldn't expect it to.  Maybe this is utter
foolishness, but I reread Simpson (the case of the Wiccan woman being
excluded from being able to offer a legislative prayer) last week. 
Chesterfield County didn't have legislative prayer until 1984, when in
the wake of Marsh, it decided to do so.  It was the judicial
ratification of legislative prayer that prompted Chesterfield County to
adopt it.

Best,
Chris

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 1:16 PM >>>
	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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