Divisiveness as an Establishment Clause test

[Volokh, Eugene]

	I'm not suggesting that avoiding religious divisiveness should be the Establishment Clause test.  Rather, I was arguing against Chip's suggestion that religious divisiveness ought to be the test, or perhaps ought to be at least a justification for the no-religious-speech rule ("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.").  If there are other arguments against certain government action, whether religious speech or coercion of religious practice, that's just fine -- in fact, I might well agree with some.  But divisiveness strikes me both as (1) extremely speculative, and (2) often cutting in the opposite direction from the way it has been asserted by some courts and commentators.

	As to the empirical question of legislative prayer, my conjecture is that an entirely nonjudicialized legislative prayer system -- as opposed to the post-Marsh one, in which there are routine challenges based on the theological content of the prayer or the way the prayer program is administered -- would yield to fairly little friction, and "outrage" only among a relatively few people who are deeply engaged in the issue.  And certainly we see that outside legislative prayer, there was a vast amount of outrage (and resulting divisiveness), in my view addressed not just at the courts but also at those religious (or nonreligious) groups that were seeking the change, with regard to the Pledge decision, the school prayer decisions, and other decisions.  But I agree that this is indeed highly tenuous speculation, which sounds like good reason not to make divisiveness be the focus.

	Eugene


Christopher Lund writes:

Professor Volokh's empirical statement might be true.  But what if it is also true about coercion?  Perhaps division might be reduced if government could coerce religiously.  I think the Innerchange litigation was far more controversial than the program; maybe prisons should be able to freely give prisoners benefits if they convert to Christianity.  And allowing coercion may not mean jail time for anyone.  The same political process that stops the more polarizing sort of endorsements will also check the harsher forms of governmental coercion.  When Professor Volokh asked, "What if Establishment Clause has proven more divisive than the problems it was supposed to solve?" - what if that's true for the Establishment Clause wholesale, and not just the "endorsement" part of it?
 
As for the empirics, the counterfactual that Professor Volokh suggests - what would our world be like if government could endorse religion? - is obviously hard to run with the endorsement rule still in place.  But we've run it with legislative prayer.  And I think it's been pretty bad for religious liberty: Believers kept out of the rotation because of their minority affiliations, listeners outraged by denominational prayer, speakers outraged by being told not to pray in denominational terms, elections decided on the basis of some legislative prayer issue.  All of this, as Doug said, totally gratuitous to governance.  Of course, maybe the situation would be worse if Marsh had been decided the other way.  It's impossible to say for sure, but I think there is reason to doubt that claim.  There would have been some hostility to the Supreme Court, of course.  But it would have been directed mostly at the Court, right?  And how much more additional hostility above Engel/Schempp/Stone?  And wouldn't that hostility have tended to diminish in the years that followed?  It's 25 years after Marsh, and in terms of division, I sense that legislative prayer is only just getting started.
 
Best,
Chris
 
______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
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>>> VOLOKH at law.ucla.edu 3/27/2009 10:09 AM >>>
Chip Lupu writes:

> 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?) 

    I appreciate this concern, but let me ask:  Since the Court
started viewing the Establishment Clause as a restraint on government
speech, we've seen lots of pretty divisive fights over religion in
public life (school prayer, the Pledge of Allegiance, creationism, and
the like).  It's possible that these fights are less divisive and
destructive than the fights that would have happened over these subjects
if the Establishment Clause weren't enforced by courts as a restraint on
government speech.  But what reason do we have to be confident of that?
What if Establishment Clause has proven more divisive than the problems
it was supposed to solve?

    Eugene
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