Divisiveness as an Establishment Clause test

Sun Mar 29 12:32:29 PDT 2009

Got it.  And in addition to being speculative, maybe it's also
incommensurable in the sense that the sort of division created by the
no-religious-speech rule is different in kind than (and not easily
measured against) the sort of division that would be created by allowing
religious speech.  But I get what you're saying.  And maybe you're being
merciful to let me escape the "divisiveness" fight with a draw.

I guess I just think that it's sometimes easy to underestimate the
problems caused by governmental religious speech.  Perhaps Chief Justice
Burger in Marsh did that; I doubt he could have possibly foreseen the
various problems that having legislative prayer would create.  So, like
you, I guess I don't think divisiveness cuts only one way.  And, in part
for that reason, I too wouldn't make divisiveness the touchstone.

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)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

>>> VOLOKH at law.ucla.edu 3/28/2009 9:52 AM >>>

    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.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

>>> 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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