Using religion for government purposes

[Volokh, Eugene]

	I agree with Alan at a general level.  Among other things, I
think his observations, like mine, help show that it's problematic to
say that "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."  Forbids on what
authority?  And supposed to by whom?

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Friday, March 27, 2009 10:29 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Using religion for government purposes
> 
> I think that Eugene's mention of the fact that the government's
accepted use of
> religion occurred at a "pretty ecumenical level" has to carry a lot of
weight here.
> It's not that there weren't countervailing cultural, political, and
legal aspects of our
> history. Certainly, contempt for Native American faiths,
anti-Semitism, anti-
> Mormonism and anti-Catholicism are a part of our heritage. But our
constitutional
> culture had a strong foundation in inclusive and non-preferential
church-state
> relationships and has increasingly evolved toward increased
inclusivity. Today,
> given the diversity of beliefs in our society, these parallel themes
of inclusivity
> and anti-preferentialism on the one hand and some limited use of
religion by
> government on the other are increasingly difficult to reconcile.
> 
> Alan Brownstein
> ________________________________________
> From: religionlaw-bounces at lists.ucla.edu
[religionlaw-bounces at lists.ucla.edu]
> On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> Sent: Friday, March 27, 2009 8:51 AM
> To: Law & Religion issues for Law Academics
> Subject: Using religion for government purposes
> 
> Chip Lupu writes:
> 
> > 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.
> 
>         I wonder where the "supposed to" comes from.  As I understand
> it, throughout much of history it was understood that the government
was
> supposed to use religion -- at least at a pretty broad level -- for
its
> own purposes.  That seems pretty clear in the invocations of God in
the
> first and last paragraphs of the Declaration of Independence and
nearly
> all state constitutional preambles.  It also seems to be pointed to by
> the Northwest Ordinance ("Religion, morality, and knowledge, being
> necessary to good government and the happiness of mankind, schools and
> the means of education shall forever be encouraged") and other legal
> rules.
> 
>         To be sure, there was long the understanding that there should
> be limits on this (though for a long time they were exclusively
> prudential political limits rather than judicially enforceable ones),
> and in particular that co-opting loyalty to God works best when one
puts
> it at a pretty ecumenical level.  But the notion that people's
> religiosity -- and God talk more broadly -- can legitimately be used
as
> a government tool seems to have been pretty broadly accepted
throughout
> most of American history.  And I take it that it's still accepted
pretty
> broadly by many Americans.
> 
>         Now maybe the "is supposed to" refers not to original meaning
or
> tradition or current consensus, but the judgment (perhaps the correct
> judgment) of some influential groups within modern legal elites.  But
I
> think it would require more defense than just the historical-sounding
> "is supposed to."
> 
>         As to totalitarianism, some totalitarian states (e.g., Iran)
> co-opt loyalty to God, others (e.g., the USSR and other Communist
> countries) rejected it, and for others (e.g., Nazi Germany) it seems
not
> to have played much of a role.  Likewise, some non-totalitarian states
> (e.g., the U.S.) have historically co-opted loyalty to God, at least
in
> a relatively ecumenical way.  So I'm not sure that history at that
level
> of abstraction tells us much.
> 
>         Eugene
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