Fwd: Government Religious Displays and Substantive Neutrality

[Douglas Laycock]

A friend on the list posed the following question to me.  Since he didn't send the query to the list, I have deleted his name.  If he thinks he's got me after my answer, he can take credit on his own initiative.. 

> Might you be willing to offer your reaction to the following line of argument:

> (1) Suppose that a government erects a nativity scene, a Ten Commandments display, or a cross.

> (2) It is pretty clear that this is *formally* non-neutral.

> (3) The display, however, is *substantively* neutral -- in the sense that the display does not affect anyone's religious choices.

> (4) Since the Establishment Clause is the constitutional mechanism for achieving substantive government neutrality towards religion, the display does not violate the Establishment Clause -- despite its formal non-neutrality. 

Actually, I don't think that either 2) or 3) is clear.  Formal neutrality becomes incoherent in the case of government speech.  Formal neutrality is defined as the absence of religious categories.  But a rule that government can take no positions when it discusses religion -- that it must be either silent or scrupulously neutral in what it says -- makes a very special category of religion.  On every other topic, government endorses or opposes as it chooses.  So while endorsing religion certainly seems like a departure from neutrality, it doesn't easily fit into the definition of formal neutrality.   

And if you try to put religion into one of the existing categories, which one?  The category of all the things government endorses?  All the things it opposes or denounces?  All the things it doesn't care about and expresses no opinion on?  It's really not clear what formally neutral would mean here.  

I do think government endorsements depart from substantive neutrality, because they attempt to persuade or encourage people to adopt the government's religious views.  But as my questioner notes, these government efforts are highly unlikely to be very effective.  Sometimes I have defined substantive neutrality as requiring neutral incentives; sometimes I have defined it as government neither encouraging or discouraging religious belief or practice.  I had not focused on the difference between these two formulations until I got this question, but government speech encouraging religion is a case where the encouragement is blatant but the effects on incentives may be quite small. 

I don't think the effect on incentives is zero.  Government is a large and pervasive presence, and at the margin, its religious speech surely matters.  The kinds of government speech we are talking about is not going to convert Jews or Muslims to Christianity.  But government religious speech necessarily comes in some particular form.  It models forms of prayer, forms of observing Christmas, one translation of the Ten Commandments, etc.  For the not-very-committed, these government models may well have influence.  We are engaged in a cultural battle over the proper celebration of Christmas -- is it mostly about the Incarnation of God in human form, or mostly about retail sales, acquiring stuff, and a lot of parties?  The Supreme Court says government can come down on the sales-stuff-parties side, or it can straddle that divide, but it can't come down just on the Incarnation side.  Whatever the Supreme Court said, government could not celebrate Christmas (beyond closing its offices and letting the private sector conduct the observances) without choosing a position in that battle.  And the cumulative effect of thousands of government Christmas displays may push the battle over Christmas one direction or the other. 

Having said all that, I don't think the incentive effects are the principal reason for objecting to government religious displays.  The sense of gratuitous affront to religious minorities does much of the work here; the incentives to religions to fight for control of the government if government is going to be taking positions on religion does much of the work.  Substantive neutrality was always an attempt to reconcile multiple intuitions about the Religion Clauses -- neutrality, liberty, separation, voluntaryism -- and I never claimed that substantive neutrality alone could do all the work without recourse to the underlying principles it was trying to reconcile. 

I also freely admit -- admitted in print years ago -- that government religious displays are the thing in its least burdensome form.  If I had to give up one provision of the Bill of Rights, this would be the one I would choose.  I don't think the harms caused by these displays are trivial, either to the dissenters or to the believers in the faith that is so often misused or reduced to a least common denominator.  But I do agree that the harms here are less than the harms of coercing people to violate their conscience or suppress their speech. 

Finally, I understand that silence may not be perfectly neutral either, but it is closer to neutral than government taking positions.  And I do not think that government silence with respect to religous displays would lead to a naked public square.  I think the private sector would fill the gap with alacrity.  What would be lost is not religious speech, but government endorsement of religious faith.  And I continue to think that both the majority and the minority are better off without it. 

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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090330/072af198/attachment.htm>