Harder to tell because the Chief wasn't an explicit about his
theory as Scalia was; but he did join Scalia's dissent, and the theory
of Scalia's dissent is that the historical sources that the Chief cites
support government endorsement of monotheism but not of Christianity.
As to my own answer, I really am torn. I find a nonendorsement
model of the Establishment Clause to be normatively appealing; but I
think it may indeed be too vague to be administrable, even if limited to
government speech, and I also think that Scalia's historical argument is
quite powerful. But that will get us to the whole
originalism/traditionalism vs. living Constitution debate that few of
us, I suspect, have time for right now (I certainly don't).
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Alan
> Brownstein
> Sent: Tuesday, October 18, 2005 1:05 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Speaking of endorsements
>
>
> What about under Rehnquist's opinion in Van Orden? And to
> satisfy my own curiosity, what would your answer be Eugene?
>
> Alan Brownstein
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Tuesday, October 18, 2005 11:10 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Speaking of endorsements
>
> I should think that the former is unconstitutional
> under Scalia's approach, but the later would be permissible.
>
> > Eugene's comment reminded me of a question I had been meaning
> > to ask after the Ten Commandments cases last term, but never
> > got around to.
> >
> > Under Scalia's and Rehnquist's approach to religious messages
> > cases, would it be unconstitutional for the U.S. to make the
> > following proclamation and enact the following policy "The
> > United States of America endorses Christianity as the one
> > true faith. Accordingly, the government will only display
> > religious messages on public property on its own behalf
> > consistent with Christian beliefs."
> >
> > Or, alternatively "The United States of America endorses the
> > belief that there is one God. Accordingly, the government
> > will only display religious messages on public property on
> > its own behalf consistent with monotheistic beliefs."
> >
> > Alan Brownstein
> > UC Davis
> >
> >
> >
> >
> > Eugene wrote:
> >
> > Yet it seems to me that the interpretation of the site
> > as endorsing a certain view on religious matters remains a
> > quite plausible interpretation; and a court applying
> > endorsement doctrine evenhandedly may well take the view that
> > a reasonable person would adopt this interpretation, which
> > would make the site unconstitutional. I'm not at all sure
> > that this is a good result, and perhaps this is further
> > evidence of the difficulty that an endorsement test creates
> > in a world where much speech (especially in education) is
> > undertaken by government agents, and many debates are hard to
> > engage in without the ability to say often controversial
> > things about religious doctrine. Nonetheless it strikes me
> > as an eminently legally plausible result.
> >
> > Finally, this all reminds me of one of my favorite
> > quotes on religion-and-the-law question, from Michael W.
> > McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L.
> > Rev. 115, 150 (1992):
> >
> > "Consider the following examples: (1) How would the
> > parochial school aid cases fare under the endorsement test?
> > ... A significant segment of the population believes that the
> > use of government funds to assist religious education is
> > tantamount to putting priests on the payroll. On the other
> > hand, granting funds to secular schools but not to equally
> > qualified religious schools creates at least the appearance
> > of disapproval.... (2) Does tax-exempt status convey a
> > message of endorsement of churches? The government grants tax
> > exemptions on the theory that exempt organizations provide
> > benefits to the public. Including churches on this list
> > implies that they are wholesome and beneficial
> > institutions.... But what message would be conveyed by
> > excluding churches from the class of tax-exempt charities? ...
> >
> > "Does exemption of religious organizations or of
> > religiously motivated individuals from a law of general
> > applicability 'endorse' religion? Opponents of religious
> > accommodations argue that '[s]pecial treatment for religion
> > connotes sponsorship and endorsement'.... Justice O'Connor
> > agrees that exemptions cause resentment, but holds that this
> > resentment is 'entitled to little weight' because
> > accommodations promote the 'values' of the Free Exercise
> > Clause. Others, such as Professor Laycock, say that
> > exemptions do not appear to endorse religion at all.
> >
> > "I know all of these people to be reasonable observers,
> > well schooled in the values underlying the First Amendment.
> > That does not seem to help."
> >
> >
> >
> >
> >
> >
> > _______________________________________________
> > To post, send message to Religionlaw@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.
> >
> _______________________________________________
> To post, send message to Religionlaw@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.
>
>
>
> _______________________________________________
> To post, send message to Religionlaw@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.
>
_______________________________________________
To post, send message to Religionlaw@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.
