Using religion for government purposes

[Christopher Lund]

Professor Brownstein earlier wrote: 
 
"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."
 
A freak coincidence * just after having read this, I was reading Justice Scalia's dissent in McCreary County for class.  There he says he would allow government to support religion in general, and he dismisses the idea that this would result in the government favoring one religion over another.  This is the passage that struck me:
 
"This is not to say that a display of the Ten Commandments could never constitute an impermissible endorsement of a particular religious view.  The Establishment Clause would prohibit, for example, governmental endorsement of a particular version of the Decalogue as authoritative."
 
Nothing has devastated this logic more than Summum itself, right?  And what keeps striking me is that (1) this impeachment came only four years after McCreary County, and (2) even someone as amazingly intelligent and prescient as Justice Scalia didn't see it coming.  I guess I'm saying that I think the dangers Professor Brownstein talks about below are very hard to see coming.  Until they do.
 
 
______________________
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 

>>> aebrownstein at ucdavis.edu 3/29/2009 4:28 PM >>>

       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."

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: Saturday, March 28, 2009 9:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Using religion for government purposes

        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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