Government Religious Displays and Substantive Neutrality

[Steven Jamar]

In other words, Rick wants us to ignore the distinction between  
religion and secular and to repeal the establishment clause, leaving  
only the free exercise clause.  Let the government make its religious  
speech, just like any other speech.  Let government push any religious  
point of view as if it were any other point of view, such as ones  
about democracy and the environment.

An establishment prohibition is not necessary for liberty in general  
and religious liberty in general -- many countries in the world  
establish religion and yet grant broad liberty in the form of speech  
and free exercise.  But it is nonetheless a useful and generally good  
distinction.

Rick doesn't like it even though the Constitution mandates that we  
make this distinction.  But that is hardly a Constitutional argument  
to treat religion just like any thing else.

Steve

-- 
Steven D. Jamar
vox:  410-992-9664              cell:  410-499-1536
mailto:stevenjamar at gmail.com  http://iipsj.com/SDJ/


On Mar 31, 2009, at 11:02 AM, Rick Duncan wrote:

> Doug Laycock writes:
>
> "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 think this is the key to why Doug and I come out differently here.  
> Doug emphasizes the
>
> "sense of gratuitous affront to religious minorities"caused when  
> govt speech includes some, but not all, religious expression. But I  
> see the "gratuitous affront" to people of faith when govt celebrates  
> all sorts of secular subgroups and their special days (Gay Pride,  
> Cinco de Mayo, etc), but celebrates no religious subgroups and their  
> special days.
>
>
>
> In other words, to remain rigidly neutral among all religions,  
> Doug's EC treats all religious subgroups as outsiders in public  
> schools and in the public square. As I said, when religious  
> conservatives must suffer Gay Pride Displays in the schools, but are  
> told that displays recognizing religious holidays are prohibited  
> because they are considered offensive to some members of the  
> community, they suffer terribly from the kind of gratuitous affront  
> that Doug says is the principal reason for an EC that prohibits  
> governmental religious displays.
>
>
>
> A rule that cause the same kind of harm it is supposed to prevent is  
> a rule that needs major recalibration.
>
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
>
>
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