But Marci, O'C's endorsement test is not inclusive with respect to religion. It excludes all religious beliefs from being celebrated in the public square, while permitting all secular beliefs to be celebrated. You don't show respect for all religious beliefs by throwing them out of the house.
In any event, I am sure Alito's supporters would be delighted to have his confirmation turn on on his views about the EC going a bit too far in the direction of excluding religion from the public square. I can just see Sen. Kennedy protest that "Sam Alito's America is an America in which nativity scenes are permitted in public parks and schoolchildren are permitted to pledge allegiance to one Nation under God."
If the argument against Alito is "Bah, humbug," Alito wins.
Cheers, Rick Duncan
[EMAIL PROTECTED] wrote:
_______________________________________________The problem with this debate is that those arguing for "hostility to religion," mean "hostiltity toward their religion, Christianity." O'Connor's endorsement test is sensitive to those who are religious (or not) and are not in the favored majority. So her test in fact is not hostile to religion, but rather makes room for a wide variety of believers. In the end, it is more respectful of religious belief than the "hostility to religion" view.The American people need to be educated on this crucial difference, and come to understand that the message they are receiving is a message about the right to dominate the public square vs. the requirement government remain sensitive toward all religious believers (in a country where the right to believe anything one wants is constitutionally absolute).While the public debate has been dominated in recent years by those who equate "religion" with "particular Christian religion," and they have set the agenda to date, there are many indications that this equation is beginning to be challenged.It's a great time to have a debate about whether this is a country that believes in inclusion and respect for all beliefs or the imposition on all of a particular religious group's views. If Alito's nomination spurs that kind of debate, it's good for everyone.Marci
-----Original Message-----
From: Rick Duncan <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Fri, 4 Nov 2005 07:35:28 -0800 (PST)
Subject: Alito v. the Grinch: Was Hostility Thread
Whatever the constitutional cognoscenti believe about the Court's EC jurisprudence and religious hostility, many ordinary citizens reasonably view this body of law (including O'C's endorsement test) as hostile toward religion. I don't think Alito's opponents want to fight a confirmation battle over passive displays of Nativity Scenes, Ten Commandments monuments, and the Pledge of Allegiance. On these issues, Alito is likely to be directly in the center of the mainstream of the American public. Even student-initiated, voluntary prayer at football games is not an issue that will cause the American public to rise up against Alito.This is a great time to be having this debate, because we are about to enter the season in which local governments are pressured by the ACLU and similar organizations to ban Christmas celebrations--even quite modest ones--in the public schools and public parks.For many people, the beginning of the Christmas season is the Friday after Thanksgiving. Not for me. I know that Christmas is upon us when I hear of the first lawsuit filed against a Nativity display in a public park or to enjoin a Christmas celebration in a public school. That's when I and the rest of Clan Duncan break out the egg nog, throw another log on the fire, and sing Silent Night.Rick Duncan
Francis Beckwith <[EMAIL PROTECTED]> wrote:I don't want to be too picky here, but Alito is saying "impression of hostility," not necessarily "hostility." So, in a sense, he does not disagree with Marty. Alito says "impression," and Marty says "misperception." A misperception is in fact an impression, but an inaccurate one.
I do think that Alito is correct that there is an impression of hostility. Now whether that impression is justified is ever or always justified is another question. But clearly Alito is justified in saying that many ordinary people in fact have that impression.
Frank
On 11/4/05 4:31 AM, "Marty Lederman" <[EMAIL PROTECTED]> wrote:
http://www.nytimes.com/2005/11/04/politics/politicsspecial1/04confirm.html
Alito believes that the Court's doctrine "really gives the impression of hostility to religious speech and religious _expression_" and that "the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual _expression_ of religion"? Even after Widmar and Mergens and Lamb's Chapel and Good News Club and Rosenberger, etc.?
To be perfectly honest, I find this a bit disturbing -- particularly because it plays into the all-too-common public misperception that the Court's modern doctrine has been hostile to private religious _expression_. Nothing, of course, could be furthe! r from the tru! th. (Indeed, I think it's fair to say that the Court has done more to protect private religious _expression_ over the last 25 years than just about any other form of private _expression_.)
What Alito appears to be getting at, of course, is not private _expression_, but govenmental speech (or government preferences for religious speech). In particular, he appears to have sent Cornyn signals that he thinks Santa Fe was wrongly decided -- which, if true, is very unfortunate, IMHO.
Further evidence, I think, that one of the very first and most dramatic shifts of doctrine in the move from SOC to Alito will be w/r/t the Religion Clauses.
Nominee Is Said to Question Church-State Rulings
By DAVID D. KIRKPATRICK <http://query.nytimes.com/search/query?ppds=bylL&v1=DAVID%20D.%20KIRKPATRICK&fdq=19960101&td=sysdate&sort=newest&ac=DAVID%20D.%20KIRKPATRICK&inline=nyt-per>
WASHINGTON, Nov. 3 - Senators of both parties said Thursday that Judge Samuel A. Alito Jr. <http://topics.nytimes.com/top/reference/timestopics/people/a/samuel_a_alito_jr/index.html?inline=nyt-per> , President Bush's choice for the Supreme Court, had told them he believed the court might have gone too far in separating church and state.
Senator John Cornyn, a Texas <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/texas/index.html?inline=nyt-geo> Republican on the Judiciary Committee, said that Thursday in a private meeting Judge Alito expressed empathy for "the impression that the court's decisions were incoherent in this area of the law in a way that really gives the impression of hostility to religious speech and religious _expression_."
Senator Robert C. Byrd, Democrat of West Virginia <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/westvirginia/index.html?inline=nyt-geo> , said after his own meeting with the judge that he, too, was "very satisfied" that Judge Alito had said he believed the court had e! rred by going too far in prohibiting government support for religion at the risk of ham! pering individual _expression_ of religion.
"He indicated that people have a right, a very distinct right, to express their religious views," Mr. Byrd said.
Although the senators said Judge Alito had not told them how he would rule in specific cases, their comments were the first indication of his views concerning one of the most contentious issues before the court.
Many liberals and religious minorities view the court's jurisprudence on separation of church and state over the last 50 years as a bedrock principle of American life. But anger over the court's rulings against school prayer, government displays of the Ten Commandments and other public forms of religious _expression_ also played a major role in the birth of a conservative Christian political movement.
The selection of Judge Alito, a conservative federal appeals court judge, has ignited passions on both sides of! the aisle, in part because he would succeed Justice Sandra Day O'Connor <http://topics.nytimes.com/top/reference/timestopics/people/o/sandra_day_oconnor/index.html?inline=nyt-per> , who provided the swing vote on abortion rights and other issues.
The intensity is so high that some members of Congress and outside groups worry that the divide over Judge Alito could lead to a filibuster. The so-called Gang of 14 - seven Democrats and seven Republicans who banded together this year to avert such a shutdown of the nominations process - met Thursday and publicly proclaimed their agreement intact, at least for now.
Judge Alito's conversations about religion took place as People for the American Way, the well-financed liberal advocacy group, said it would begin running television commercials this weekend opposing his confirmation.
The organi! zation is well known for its television advertisements,! starring Gregory Peck, in opposition to the Supreme Court nomination of Judge Robert H. Bork. But it has never run commercials so soon after a selection.
The group's new advertisement attacks Judge Alito as a favorite of conservatives. "First the radical right vetoed Harriet Miers <http://topics.nytimes.com/top/reference/timestopics/people/m/harriet_e_miers/index.html?inline=nyt-per> to replace Sandra Day O'Connor," the script reads. "Now Bush has named their handpicked candidate, Samuel Alito."
A White House spokesman, Steve Schmidt, said, "It is unfortunate that interest groups like People for the American Way that are far outside the mainstream of American politics are trying to degrade what should be a dignified process."
The leaders of the Senate Judiciary Committee on Thursday scheduled confirmation hearings for Jan! . 9, bucking pressure from the White House to hold the hearings before Christmas.
Senator Arlen Specter, the Pennsylvania <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/pennsylvania/index.html?inline=nyt-geo> Republican who is chairman of the Judiciary Committee, said he believed the White House's timetable was "not, in my judgment, practical." Mr. Specter said the committee's staff needed time to digest the roughly 3,750 cases on which Judge Alito voted and 300 opinions he wrote.
As Judge Alito continues to pay courtesy calls to senators, the Gang of 14 has become a subject of intense speculation because of the possibility that Democrats might try to stop his confirmation with a filibuster. Republicans are threatening to overcome such a move by ca! lling a majority vote to cha! nge the Senate rules, a move known as the "nuclear option." The 14 senators have pledged to block the rule change or to allow filibusters only in "extraordinary circumstances."
Two Republican members of the group, Senators Mike DeWine of Ohio <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/ohio/index.html?inline=nyt-geo> and Lindsey Graham of South Carolina <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/southcarolina/index.html?inline=nyt-geo> , have said that if Democrats stage a filibuster against Judge Alito's confirmation, they would support a rule change. But on Thursday, members of the group said they had not yet confronted such a possibility.
After the group's Thursday meeting, Senator Joseph I. Lieberman <http://topics.nytimes.com/top/reference/timestopics/people/l/joseph_i_lieberman/index.html?inline=nyt-per> , Democrat of Connecticut <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/connecticut/index.html?inline=nyt-geo> , said "The gang of 14 stands by the agreement of the 14."
Senator Ken Salazar of Colorado <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/colorado/index.html?inline=nyt-geo> , a Democratic member of ! the group, argued that the Bush administration had violated the spirit of the compromise by failing to consult with Senators before announcing the nomination.
"I have a sense that what will happen with this appointment is that we are going to see America be more divided than it ever has been," he said, "and part of that is because it wasn't the right kind of process."
Senator Lincoln Chafee of Rhode Island <http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/rhodeisland/index.html?inline=nyt-geo> , a Republican member of the group and one of the handful in his party who support abortion rights, said after meeting with Judge ! Alito that he remained concerned about the judge's approach to that issue, to the scope of federal power under the Constitution, and to the "separation of church and state."
" ! 'Red flags' may be a little early, but concerns, caution flags," Mr. Chafee said.
Mr. Cornyn, a former Texas attorney general, said he and Judge Alito had discussed the Supreme Court case Santa Fe Independent School District v. Doe, which Mr. Cornyn argued in 2000 and lost. The court ruled that the Constitution did not allow student-led prayer before a public high school football game.
"He did commiserate with me a little bit," Mr. Cornyn said. "I hope that he will be able to give the United States Supreme Court's ruling some coherence, because frankly they are way out of step with what the founding fathers intended."
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_______________________________________________
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner_______________________________________________ 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.
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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