Fwd: Government Religious Displays and Substantive Neutrality

[Douglas Laycock]

I think that some of what Rick objects to can be fixed, and some of it -- maybe the core of it -- cannot.   

Of course we could exempt religious objectors from courses with religiously objectionable content.  Cases like Mozert and Hot, Sexy, and Safer, which refuse even to entertain exemption requests, are outrageous.  We could also protect religious dissent from government viewpoints; cases allowing schools to suppress dissent on gay rights issues are also outrageous. 

But the core of what Rick complains about is that government can promote viewpoints on political issues, even if the government's position has implications for some religions, but government cannot promote viewpoints on religious issues.  This most commonly arises with respect to moral issues, although evolution presents the same problem, and in principle it could arise anywhere.   

Both church and state speak to moral issues.  The churches promote their view of moral obligation, and the state decides what moral values are sufficiently important to write into law.  Often there is substantial overlap; this was the kernal of truth in the argument that the Ten Commandments overlap with secular law.  Sometimes there is disagreement.  When liberal churches teach nondiscrimination and conservative churches teach sex only within marriage between one man and one woman, the state will be disagreeing with some religious body no matter what it does. 

There can be many religious views of sexual morality, but only one view can be written into law, and we choose the one to be written into law through the political process.  Government is a central part of that process; it can try to enforce laws once enacted, and persuade people to comply voluntarily; it can try to lead public opinion to get laws enacted.  And so there will be displays about polticial positions that incumbent administrations consider important, or likely to attract votes.  So the gay pride display may be offensive, but it is not gratuitous.  It is part of the political process. 

There is no similar need to choose a single religous view, on gay rights or anything else, and for the government to choose one religious view is not part of any legitimate political process unless we want to start voting on religion.  It is one thing for government to say I must comply with laws I don't like, and even that I should learn to like them.  It is a very different thing for government to say, or imply, that I will be eternally punished if I don't accept its viewpoint. 

Quoting Rick Duncan <nebraskalawprof at yahoo.com>:

> 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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>

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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