"Political divisions along religious lines"

[Brownstein, Alan]

I think there is a lot of merit in what both Chris and Eugene are saying. It is hard to evaluate the political divisiveness issue without including some kind of temporal reference. Restrictions on the exercise of majority prerogatives in the name of minority rights will often produce a substantial reaction at first. But over time that may subside as people's attitudes change. Certainly the school prayer decisions of the 1960's were extremely controversial and divisive, but today they are accepted by many people of all faiths and political dispositions. It is hard to know what the long term reaction to constitutional decisions will be.

There is also an issue of external as opposed to internal divisiveness. The civil rights movement and the legislation and constitutional decisions that resulted from it were incredibly divisive and produced a bitter and violent reaction. But I would be hard pressed to describe the Jim Crow regime of racial segregation and subordination as less divisive than the civil rights regime that followed it.

(No, I am not equating prayers at city council meetings with racial subordination. The point is that if divisiveness is measured in quantitative terms, there is a sense in which what bothers the majority will always be more divisive than what bothers a minority -- and that while the resentment of the minority may be internalized (for obvious reasons), the fact of internalization says little about magnitude of people's feelings.)

Alan Brownstein
UC Davis School of Law



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