Using religion for government purposes

[Volokh, Eugene]

	As I understand it, throughout American history the government
has repeatedly, in a vast range of contexts, invoked a particular
conception of God -- one God, who created the world, who sets a moral
code for us, who judges us ("the Supreme Judge of the world"), and who
may protect us in certain situations ("a firm reliance on the protection
of Divine Providence").  This is a pretty broadly ecumenical conception
of God, but it is still one view of God.  So I don't really see how
history supports rejection of the continued use of this conception in
government speech.

	Likewise, while there is some strand of constitutional case law
that would condemn every government reference to that conception of God,
the case law is pretty clear deeply mixed, with the bottom line
supporting the constitutionality of at least some such reliance (see
Marsh and Van Orden).  So I'm not sure that arguments based on
constitutional case law on balance support rejection of the continued
use of this conception in government speech.

	Finally, while there has been an evolving cultural commitment in
favor of religious inclusivity, my sense is that the acceptance of
government invocation of God in the way I describe still has wide
adherence in virtually all aspects of American culture except the
subculture of the academic and legal elites.  So I don't really see how
evolving cultural commitments will do the work that history and case law
won't.

	Now to be sure there are eminently plausible arguments why a
rule barring all government religious speech (with some hazy exception
or limitation related to religious speech of sufficient historical
significance, ranging from the text of Founding documents to the names
of our cities) would be morally or practically superior.  But I don't
think that one can support these arguments with reference to culture or
to history, and one can rely on case law only by pointing to extremely
contested case law that on balance allows a good deal of government
religious speech (except when it doesn't).

	Eugene

Alan Brownstein writes:
	 
>        I think Eugene may have read more into my comment than I
intended
> (probably my fault for not being more clear and trying to get away
with too brief a
> comment). I think it is problematic to argue that our government is
"identified with
> a particular conception of God." There are strong arguments based on
history,
> evolving cultural commitments, and constitutional case law to support
the
> argument that government should not identify itself with, and use the
resources of
> government to promote, a particular religious faith. There are
arguments on the
> other side as well -- but I think the direction of law and history has
been toward
> inclusivity rather than preferentialism.
> 
>       Clearly some kinds of traditionally accepted preferentialism are
no longer
> acceptable. Government does not fund missionaries to convert Native
Americans
> today and it does not use the public schools to promote Protestantism
over
> Catholicism. In the past, American culture and law has been able to
increasingly
> advance an inclusive understanding of religious liberty and equality
without
> rejecting some broadly stated public commitment to religion. As our
society has
> become more diverse, however, this has become increasingly more
difficult to do.
> Hence, the degree of constitutional conflict over this issue.
> 
>        I suspect we are going to see some very hard cases in the
future. If the
> constitutional constraints on government displays of religious
messages weaken,
> most decision makers, I suspect, will accept displays from many of the
popularly
> recognized faiths in our society. Having done so, however, that will
make the
> rejection of less popular and recognized faiths all the more glaring.
It will be
> increasingly difficult to characterize government decisions in those
cases as
> anything other than the rejection of particular religions. That's
problematic to me
> (and it is, I believe subject to constitutional challenge) -- but it
seems to me to be
> the inevitable consequence of permitting government to identify and
align itself
> "with a particular conception of God."