Summum
Ira (Chip) Lupu
iclupu at law.gwu.edu
Fri Mar 27 06:26:31 PDT 2009
Rick likes to call the restriction on government religious speech a "heckler's veto," because that's a pejorative. And I must say that the "endorsement" approach, and a focus on "offense" taken by viewers, feeds that way of framing the issue. But there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail. (In which American cities will Allah be praised? In which ones will officials pray only in the name of Jesus?) Second, our government is supposed to be "under God," not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S.
Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical).
Chip
---- Original message ----
>Date: Thu, 26 Mar 2009 20:00:19 -0700 (PDT)
>From: Rick Duncan <nebraskalawprof at yahoo.com>
>Subject: RE: Summum
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>
>I agree with Doug that unlike political issues, "we don't
>need to vote to determine what religion we are."
>
>But much govt speech is not about political issues and
>elections. A lot of government speech "endorsing" religion
>has to do with govt recognizing religious holidays and
>recognizing religious cultural subgroups in the community or
>as part of the community's history.
>
>If the EC endorsement test only prohibited government speech
>taking an official position on religious doctrines such as
>the doctrine of election or the divinity of Christ, I would
>not be too concerned (although I might still wonder how
>anyone has a liberty interest to justify such a claim under
>the incorporated EC). And frankly, the political process is
>almost always a sufficient check on govt endorsing specific
>religious doctrines.
>
>But, of course, much govt religious speech is of the
>cultural type--Christmas displays or Ten Commandment
>displays and the like. In other words, it is not about
>elections, but about recognizing we are a nation of many
>different communities with many different cultures,
>including religious subgroups and religious cultures, and
>religious history.
>
>Religious subgroups are part of the culture as well--if a
>public school may celebrate Gay Pride Week and Black History
>Month and Earth Day and Cinco de Mayo, there is no reason to
>forbid it from recognizing Christmas. Those who are offended
>by any of these displays can avert their eyes. There is no
>liberty to silence govt speech recognizing religious
>holidays and religious subgroups as part of a pluralistic
>community.
>
>Liberty is best served by protecting the right of the govt
>to recognize that religion is part of the culture and by
>protecting the right to receive govt speech of those who
>wish to view religious displays as part of the govt's
>recognition of our culture and pluralism. The heckler's veto
>created by the endorsement test is a liberty-restricting,
>not a liberty-protecting, interest. It is a right to control
>what kind of govt expression a willing audience can view,
>even though the only burden on the Pl is the burden of
>averting the eye.
>
>This is the kind of issue I love discussing in class. And my
>students understand that the solution is not as simple as
>saying that religious speech is different from secular
>speech under the First Amendment. Sometimes it is, and
>sometimes it isn't.
>
>Rick Duncan
>Welpton Professor of Law
>University of Nebraska College of Law
>Lincoln, NE 68583-0902
>
>"Democracy is two wolves and a lamb voting on what to have
>for lunch. Liberty is a well-armed lamb contesting
>the vote."--Ben Franklin (perhaps misattributed, but still
>worthy of Franklin)
>"It's a funny thing about us human beings: not many of us
>doubt God's existence and then start sinning. Most of us sin
>and then start doubting His existence." --J. Budziszewski
>(The Revenge of Conscience)
>
>"Once again the ancient maxim is vindicated, that the
>perversion of the best is the worst." -- Id.
>
>--- On Thu, 3/26/09, Douglas Laycock <laycockd at umich.edu>
>wrote:
>
> From: Douglas Laycock <laycockd at umich.edu>
> Subject: RE: Summum
> To: religionlaw at lists.ucla.edu
> Date: Thursday, March 26, 2009, 2:44 PM
>
> -----Inline Attachment Follows-----
>
> Actually, I raised Rick's question in class today. Not
> with respect to Summum, which we haven't gotten to yet,
> but with respect to the difference between the remedy in
> Barnette and the remedy in Engel and Schempp. Students
> pretty quickly decided that government couldn't govern if
> it couldn't try to influence public opinion on political
> issues. Political issues require a collective decision;
> we debate and lobby and hold elections and eventually, the
> people or their elected representatives vote.
>
> There is no need for a collective decision on religion.
> We don't have to vote to determine what religion we are;
> we can be a lot of different religions. Election
> campaigns and voting about what religion we really are
> would be a wholly unnecessary source of conflict. And
> letting the self-presumed majority, or noisiest minority,
> seize control of the government's religion without a vote
> is no better.
>
> We protect individual liberty by maximizing individual
> choice, and with respect to religion, there is no reason
> to limit individual choice even to the extent of
> permitting government persuasion -- or government
> propaganda.
>
> Quoting Rick Duncan <nebraskalawprof at yahoo.com>:
>
> > I appreciate Alan's many good points about the EC. Of
> course, we all
> > discuss all of these points when we cover the EC in our
> classes.
> >
> > My post about Alito's opinion in Summam--in which he
> describes the
> > government's ability to choose its own message and its
> own viewpoints
> > as essential to the conduct of government--and then says
> oh, but
> > religious speech by government is different, raises a
> different issue
> > which I think also deserves discussion in the classroom.
> >
> > Certainly, religious equality is important, but so is
> cultural
> > equality and political equality.
> >
> > Imagine two passive displays in a public school--one is
> a nativity
> > scene recognizing the fact that many in the community
> are celebrating
> > Christmas, and the other is a gay pride display which
> says "support
> > gay equality and stop homophobia."
> >
> > Both of these displays are challenged by students who
> find them
> > offensive--the nativity display by student A who is
> offended by the
> > schools "endorsement of religion" and the gay pride
> display by
> > student B, a conservative Christian who is offended by
> the school's
> > endorsement of the message that his religious belief
> about human
> > sexuality is wrong and must be "stopped."
> >
> > Many of you would agree with Justice Alito that the
> government has a
> > right to take a position denouncing "homophobia" and
> that we would
> > deny an essential part of government's power if we allow
> student B a
> > heckler's veto enjoining the government's right to
> express its
> > message. So long as the government does not coerce
> student B into
> > affirming his support for the government's viewpoint,
> his remedy is
> > to avert his eye rather than to silence the government
> and those who
> > wish to receive the government's message about gay
> rights.
> >
> > But not so with student A and his objection to the
> Christmas display.
> > Even though his liberty is in no way deprived by a
> passive display
> > recognizing a religious holiday being celebrated by many
> in the
> > community, he has the right to censor government speech
> endorsing
> > religion. Suddenly, government speech is not so
> essential and is
> > subject to a heckler's veto by anyone who takes offense.
> >
> > If Alito is right and the essence of government is to
> speak out and
> > take the viewpoints of its choice on issues that come up
> in the
> > marketplace of ideas, why should the EC be interpreted
> as protecting
> > a non-liberty interest of hecklers to censor religious
> viewpoints
> > expressed by state and local governments?
> >
> > Because student A feels like an outsider as a result of
> the state's
> > nativity display? But doesn't student B, the religious
> "homophobe,"
> > feel even more like an unwanted outsider when the state
> endorse the
> > gay pride display and the message that "homophobia" such
> as his
> > religious beliefs must be stopped?
> >
> > We all cover the issues Alan raises. But I suspect many
> of us do not
> > point out the contrast between those offended by the
> government's
> > secular speech and those offended by the government's
> religious
> > speech. And even if you accept that the EC is properly
> incorporated
> > as a "liberty" interest under the 14th Amendment, what
> explains the
> > Court's many cases protecting non-liberty claims under
> the
> > judicially-created endorsement test. The endorsement
> test is a
> > structural test, not a liberty-protecting test.
> >
> > I think it makes teaching the EC far more interesting
> when you ask
> > some of these hard questions about the endorsement test
> as applied
> > via incorporation to the states, and point out the
> contrast between
> > what Alito's says about government speech in general and
> what he says
> > only a sentence or two later about the EC as a
> limitation on the
> > government's power to choose its messages.
> >
> >
> >
> > Rick Duncan
> > Welpton Professor of Law
> > University of Nebraska College of Law
> > Lincoln, NE 68583-0902
> >
> >
> > "Democracy is two wolves and a lamb voting on what to
> have for lunch.
> > Liberty is a well-armed lamb contesting
> > the vote."--Ben Franklin (perhaps misattributed, but
> still worthy of
> > Franklin)
> >
> > "It's a funny thing about us human beings: not many of
> us doubt God's
> > existence and then start sinning. Most of us sin and
> then start
> > doubting His existence." --J. Budziszewski (The Revenge
> of
> > Conscience) "Once again the ancient maxim is
> vindicated, that the
> > perversion of the best is the worst." -- Id.
> >
> > --- On Thu, 3/26/09, Brownstein, Alan
> <aebrownstein at ucdavis.edu> wrote:
> >
> > From: Brownstein, Alan <aebrownstein at ucdavis.edu>
> > Subject: RE: Summum
> > To: "Law & Religion issues for Law Academics"
> <religionlaw at lists.ucla.edu>
> > Date: Thursday, March 26, 2009, 10:29 AM
> >
> > Just a few quick points.
> >
> > 1. There is nothing in Justice Alito's comments that
> limit his
> > remarks about government speech to "passive" government
> speech.
> > Government can say what it wants to say actively or
> passively. If
> > government has unlimited discretion in communicating its
> own messages
> > and that power is not limited by the Establishment
> Clause, why can't
> > government proselytize in favor of particular faiths.
> >
> > 2. You could substitute spending for speech in most of
> Alito's
> > comments. Government has tremendous discretion in
> deciding how it
> > will spend its money. This power is not limited by the
> Free Speech
> > Clause. But many of us would argue that the
> Establishment Clause
> > constrains the government's power to subsidize the
> religious
> > activities of particular faiths and not others.
> >
> > 3. Government may express passive messages in places
> other than
> > public property. Suppose the government purchased a
> large cross and
> > requested permission to locate it on the grounds of a
> particular
> > church that it favored. Would that violate the
> Establishment Clause?
> > If the government can single out a particular faith
> community's
> > religious message and adopt it as its own and dedicate
> public
> > property as the site for the communication of that
> message -- all in
> > the name of unrestricted government speech -- why can't
> the
> > government create its own religious display and exhibit
> it on private
> > property that it selects (with the owner's permission)?
> >
> > 4. While I certainly appreciate the argument that
> government attempts
> > to influence the religious beliefs of the community
> through
> > government speech implicate religious liberty interests,
> I would have
> > thought that the obvious value at issue in the Summum
> case was
> > religious equality. The government adopts the religious
> message of
> > one faith community and rejects the religious message of
> a different
> > faith community. The analogy here would be a city that
> adopts
> > religious displays to celebrate Christian holidays, but
> refuses to
> > accept displays celebrating the holidays of other faith
> communities.
> > The question raised by Summum that the Court alluded to
> -- but did
> > not directly address -- is the extent to which the
> Establishment
> > Clause limits this kind of government preferentialism.
> I suspect
> > some of Rick's students may raise this point even though
> it is is not
> > suggested by his comments.
> >
> > Alan Brownstein
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu
> > [religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick
> Duncan
> > [nebraskalawprof at yahoo.com]
> > Sent: Thursday, March 26, 2009 8:22 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Summum
> >
> > Here are some thoughts of mine I am sharing today with
> the students
> > in my Con law Seminar in which one of the students is
> presenting
> > today on Summam:
> >
> > I was re-reading Summum this morning, because Mark is
> going to give
> > his presentation on the case this afternoon. And here is
> something
> > that struck me about Justice Alito's opinion.
> >
> > He starts off giving a tribute to the essential nature
> of government
> > speech. He says:
> >
> > -- "the Free Speech Clause... does not regulate
> government speech"
> >
> > -- "a government entity has the right to speak for
> itself"
> >
> > --government is "entitled to say what it wishes"
> >
> > --government may "select the views it wants to express"
> >
> > --"It is the very business of government to favor and
> disfavor points
> > of view"
> >
> > --"it is not easy to imagine how government could
> function if it
> > lacked this freedom"
> >
> > --"To govern, government has to say something, and a
> First Amendment
> > heckler's veto of any forced contribution to raising the
> government's
> > voice in the 'marketplace of ideas' would be out of the
> question."
> >
> > Yet, without missing a beat or apparently even being
> aware of the
> > contradiction, Alito goes on to say that of course
> "government speech
> > must comport with the Establishment Clause."
> >
> > Why should this be so? Why should the Court be so ready
> to accept a
> > "heckler's veto" against passive government speech--such
> as a
> > nativity display in a public park acknowledging the fact
> of the
> > Christmas holiday? Why should we think that the
> government's
> > critically important right to say what it wishes and to
> express the
> > viewpoints it chooses is subject to being enjoined at
> the whim of any
> > citizen who is offended by the government's message
> acknowledging
> > religion. How could the doctrine of incorporation, which
> protects
> > only "liberty interests" against state deprivations,
> give a citizen
> > the right to restrict government from "saying what it
> wishes" by
> > means of a passive display that restricts the liberty of
> no one,
> > since all one need do if one is offended by a passive
> display
> > recognizing a religious holiday is to avert one's eye?
> Is the
> > "endorsement test" a liberty-protecting test, or is it a
> structural
> > limitation on government that somehow was mistakenly
> > incorporated as a "li!
> > berty" under the 14th Amendment?
> >
> > These are the questions that keep me up late at night
> pondering the
> > inconsistencies of the Court's treatment of government
> speech.
> >
> >
> > Of course, some will say religious speech by government
> is different,
> > because the EC restricts the power of government to
> endorse religious
> > ideas. But isn't that a structural limitation on
> government, as
> > opposed to a protection of liberty? And how can a
> structural rule
> > restricting the power of Congress under the First
> Amendment apply
> > against state governments under a test that explicitly
> incorporates
> > only "liberty" interests against state deprivations?
> >
> > The thing about the Summum opinion that struck me so
> vividly was the
> > contrast between Alito's tribute to the "right" of the
> state to say
> > what it wishes as essential to the very nature of
> government and his
> > casual acceptance of the EC as a limitation on the
> speech of the
> > states. Heckler's vetos are bad except when they are
> good!
> >
> > Just a few thoughts about a recent decision I thought I
> would share
> > with the list.
> >
> > Cheers.
> >
> > Rick Duncan
> > Welpton Professor of Law
> > University of Nebraska College of Law
> > Lincoln, NE 68583-0902
> >
> >
> > "Democracy is two wolves and a lamb voting on what to
> have for lunch.
> > Liberty is a well-armed lamb contesting
> > the vote."--Ben Franklin (perhaps misattributed, but
> still worthy of
> > Franklin)
> >
> > "It's a funny thing about us human beings: not many of
> us doubt God's
> > existence and then start sinning. Most of us sin and
> then start
> > doubting His existence." --J. Budziszewski (The Revenge
> of
> > Conscience)
> >
> > "Once again the ancient maxim is vindicated, that the
> perversion of
> > the best is the worst." -- Id.
> >
> >
> >
> >
> >
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get
> password, see
> >
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot
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> > posted; people can read the Web archives; and list
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> >
> >
> >
> >
>
>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI 48109-1215
> 734-647-9713
>
> -----Inline Attachment Follows-----
>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get
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>________________
>_______________________________________________
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>Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
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