Government Religious Displays and Substantive Neutrality

Tue Mar 31 09:09:38 PDT 2009

I'm late to this discussion but Rick is on to something that we have known for a long time. The modern state cannot act without conferring religious insult. A common move to avoid the implications of that is to announce, in Steven Jamar's rule, some supposed difference between the religious and the secular - generally turning on whether one uses expressly religious language or makes claims about extra temporal matters. But the idea that these matters are "religious" and everything else is secular is itself rooted in a certain view of religion and does not reflect the way many citizens view the role of faith in everyday life. As a result, the government can convey messages that are completely inconsistent with a a religious citizens most fundamental beliefs or can involve itself in events or subjects in a way that the exclusion of religion itself  conveys insult.

All of this is problematic because of the ambition with which we have sought to protect nonbelievers or historic religious minorities. Chase Harper can be told that religious beliefs that he claims are rooted in a sacred and infallible text are wrong (I understand that this in not precisely the claim that he made) while Deborah Weisman can insist on not having to sit silently while someone says a brief nondenominational prayer.

I don't think that both Chase and Deborah can be protected from religious insult. I do think that it makes little sense - and is certainly not substantively neutral - to distinguish between comparable insults on the basis of a division between the religious and secular that is not itself neutral as to the views and choices of citizens on religious matters.

This does not mean that anything goes. But, as I argue in a forthcoming piece in the William & Mary Bill of Rights Journal, we need to recalibrate the nature of the injury that raises establishment clause concerns.

Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975
Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715
Blogs: www.sharkandshepherd.blogspot.com
             http://law.marquette.edu/facultyblog/
You can access my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612
________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Steven Jamar [stevenjamar at gmail.com]
Sent: Tuesday, March 31, 2009 10:17 AM
To: Law & Religion issues for Law Academics
Subject: Re: Government Religious Displays and Substantive Neutrality

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

_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu<mailto:Religionlaw at lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.