Using religion for government purposes
Douglas Laycock
laycockd at umich.edu
Mon Mar 30 15:54:01 PDT 2009
There were real disputes before we get to Summum. Scalia's opinion in Van Orden reminds me of the Colbert interview with the Congressman who was sponsoring a Ten Commandments bill but couldn't name more than one or two Commandments. The fact that many people on both sides of this debate are uninformed doesn't mean there is no real disagreement or that no one knows about it.
A friend of mine who is devout (but not remotely fanatic, for those who might overread "devout"), and who is generally sympathetic to government promotion of religion and skeptical of my resistance, actually looked at the Texas monument for the first time during the Van Orden litigation. And her immediate reaction was, "They've got an extra commandment in there." And so they did, from her perspective. No graven images is not a separate commandment for Catholics, and that is no accident. Catholic churches are full of images (of course those images are not worshiped, but the Protestant version of the Commandments forbids the making as well as the worshiping). The iconoclasts in the Reformation destroyed the images in the Catholic churches whenever they got the chance, and many Protestant churches still today have little or no art and a bare cross. And some Muslims go much further and say no artistic depictions of any living thing. So did the Protestant plaintiff in the 1980s case from Nebraska about whether she could have a driver's license without a picture. But icons are central to Eastern Orthodox Christianity.
This is no insignificant disagreement; this is deep in the practice and imagination of large branches of Western Christianity, let alone the whole range of monotheistic faiths. And the city posts one version or the other version; it either forbids the making of graven images or it doesn't. It never posts all the different versions, and of course it never nods to the people who reject all the versions.
It was obvious in Van Orden that a government that posts religious messages would post only some religious messages and not others -- that it would choose and play favorites, and that it already had. Summum (the case) drives the point home. But for people inclined to dismiss Summum (the religion) as small and weird, we already let government reject the Commandments of much larger faiths in Van Orden itself.
Quoting Christopher Lund <Lund at mc.edu>:
> Thanks, Mark. As I understand it, Justice Scalia's position is that
> McCreary County can put up the Ten Commandments as an endorsement of
> the religious truths they contain. That's basically Part I of his
> McCreary County dissent, although he says it more succinctly in his
> one paragraph concurrence in Van Orden * "there is nothing
> unconstitutional in a State’s favoring religion generally, honoring
> God through public prayer and acknowledgment, or, in a
> nonproselytizing manner, venerating the Ten Commandments."
>
> Stevens' opinion in Van Orden points out that various monotheists
> (Jews, Muslims, and Christians) have different versions of the Ten
> Commandments. Scalia is trying to respond to that * he says that the
> differences are minor and not widely known, and therefore don't
> indicate that the government was favoring or disfavoring the version
> of one particular monotheistic group. There's no real "sectarian
> dispute," he says. No real "doctrinal controversy" between
> monotheists over which version of the Ten Commandments is true.
>
> But, it turns out, there is. And that's Summum, with its entirely
> different Ten Commandments. Scalia probably didn't know about that
> doctrinal controversy, because he presumably didn't know about Summum
> and its Seven Aphorisms. And I'm not trying to blame him; I didn't
> know about it either.
>
> ______________________
> 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[1]
>
>>>> Mark.Scarberry at pepperdine.edu 3/30/2009 4:07 PM >>>
>
> I think Justice Scalia would say that adopting a Ten Commandments
> monument as govt speech is not a statement that the version of the
> Ten Commandments on the monument is religiously authoritative or is
> somehow the correct version. If asked, the City would say that this
> is one of several versions, none of which is viewed by the City as
> the authoritative version. In fact, the City would take the position
> that the adoption of the monument was not even intended to say that
> the Ten Commandments themselves (in any version) were authoritative,
> but only to recognize that they are important in our history and
> culture.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher
> Lund
> Sent: Monday, March 30, 2009 1:48 PM
> To: Law & Religion issues for Law Academics; aebrownstein at ucdavis.edu
> Subject: RE: Using religion for government purposes
>
>
>
> 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[2]
>
>>>> 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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> _______________________________________________
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>
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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