Using religion for government purposes

[Douglas Laycock]

The historical argument is a level-of-generality issue.  The founders had prayer at government events and invoked the conception of God that Eugene describes.  They did it without controversy in a society that was overwhelmingly Protestant.  A couple of quotes from Madison and Jefferson, mostly from when they were safely out of office and never running again, cannot change that. 

The broader principle in the founding generation was that government should not take sides in religious controversies.  They fought over how to finance the church, and not over prayer at government events, because how to finance the church was controversial among Protestants.  And the dissenters in Virginia kept complaining about every vestige of support or special recognition for the Episcopal Church in Virginia, until every bit of that was eliminated.   

Government-sponsored prayer became controversial, and thus subject to the principal that government should stay out of religious controversies, with the big Catholic immigration in the 2d quarter of the 19th century.  Then it was so intensely controversial that we had people dead in the streets from mob violence.  That fight was over observances that Protestants claimed were nonsectarian but that the newly arrived Catholics found specifically Protestant. 

The emergence of substantial numbers of avowed nonbelievers is like the Catholic immigration.  It creates religious controversies where none existed before.  Then the question is whether those people just lose, because the traditional practice was neutral enough for the founders with their radically different population, or whether we should once again apply the founding principle that the government should not take sides in religious controversies.   

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         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
>

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
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