Government Religious Displays and Substantive Neutrality

[Douglas Laycock]

I fully accept Alan's analysis.  Very helpful. 

Quoting "Brownstein, Alan" <aebrownstein at ucdavis.edu>:

> While I would probably come out in the same place as Doug does on 
> many of these issues, I might be more explicit than he is in arguing 
> that substantive neutrality refers to both liberty and equality 
> values. Liberty standing alone can't handle the job. If government 
> gives modest financial incentives to one faith and not another (three 
> pence in aid), the impact on religious liberty and the incentives 
> such spending discrimination creates will be minimal or nonexistent. 
> Even minor regulatory discrimination is unlikely to persuade many 
> individuals to  change their religious beliefs and practices. But 
> surely a one dollar tax credit to Christians is unconstitutional, 
> notwithstanding its minimalist impact on religious liberty.
>
> It is not that hard to conceptualize a preferentialist religious 
> display  in a public park in the same way. If the government decided 
> that one quarter of an acre of a one hundred acre park is reserved 
> solely for the expressive use of a particular religious faith, I 
> presume that would be unconstitutional. If the government reserves 
> one quarter acre for the expressive use of a particular religious 
> faith, but insists that the message must be communicated with a 
> permanent structure, I would think that is also unconstitutional. How 
> different is it if the government states that it will accept the 
> permanent structure as a gift and place it on that same quarter acre 
> plot? In all three cases, government property is being used on a 
> discriminatory basis to communicate the message of one religious 
> community and not that of others.  The line between giving a 
> religious group funds to communicate the government's religious 
> message that coincides with the group's own beliefs, and giving a 
> religious group public land to express a religious message that 
> coincides with the government's religious commitments is thin.
>
> Alan Brownstein
>
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas 
> Laycock
> Sent: Monday, March 30, 2009 7:53 PM
> To: religionlaw at lists.ucla.edu
> Subject: Fwd: Government Religious Displays and Substantive Neutrality
>
>
> 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
>

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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