Mark: I am pretty closely connected to most of the religious
liberty public interest lawyers and litigation, and I don't know what
to think of your list. It doesn't sound like what I hear my friends
talking about.
First, I think right now the primary litigation goal of
Christian conservatives is the defense of traditional marriage, to
uphold the idea that marriage is a relationship between one man and one
woman, and that no substitutes for marriage should be recognized. In
other words, they wish to defend the line between tolerance and
celebration of alternative lifestyles.
Second, I think the idea of school choice is becoming more and
more important to Christian conservatives. Cases like the Colorado
Christian University case, in which college scholarships can be used to
attend non-pervasively sectarian, but not pervasively sectarian
colleges, must be won, and Locke v. Davey needs to be reversed in!
time. Long term it would be wonderful to see the Court hold that
religious neutrality requires states to offer school choice to parents
to enable them to protect their children from being held as part of a
captive audience for governmental inculcation.
Third, free exercise must be protected under the First Amendment
(Smith is a great threat to religious liberty and must be reversed or
its exceptions must be given full force).
Fourth, I think I would describe the I.D. issue as one involving
greater local control over school boards. Curriculum decisions should
be made in the local political process, not by a body of unelected
lawyers sitting in judgment concerning people's "purposes." Of course,
if we get school choice, all this matters a lot less.
Fifth, Christian conservatives continue to be the leading
defenders of free speech today, whether it be in Sweden in the Ake
Gree! n case,in public schools defending equal access, in Locke v.
Davey challenging viewpoint discrimination in scholarships, in law
schools defending the right of the CLS to meet on campus, or in front
of abortion clinics defending speech in traditional public fora.
I don't think anyone really wants a "Christian Nation" decision.
I think my friends simply want religious speech--not just Christian
speech but religious speech more generally--to be respected in the
public square. In other words, public schools and local
governments should be as free to recognize religious holidays and
symbols as they are to celebrate Earth Day, MLK Day, or Gay Pride
Month.
Indeed, a coercion test (as opposed to an endorsement test)
under the EC would probably satisfy most Christian conservatives. If no
one's liberty is substantially burdened by a Ten Commandments display
or a Nativity Scene in a public park or school, there ! is no reason
for courts to intervene under the EC. All dissenters need do is avert
the eye. Just as the Christian must avert the eye if he is offended by
a Gay Pride display, the secularist can avert the eye if he is bothered
by a Ten Commandments display.
Indeed, Justice Thomas' idea that the EC is incorporated only to
the extent that it protects a liberty interest would be just about
right. Only when someone's liberty interest under the EC is
substantially burdened should federal courts intervene aginst state and
local government under the incorporated EC.
I hope this helps a little. I would be happy to discuss these
matters with you.
I'm writing something in which I try to describe (in as
neut! ral a way as I can) the litigation goals likely to be sought in
the foreseeable (mid-range) future by (and here it's hard to offer a
neutral characterization, but) what I describe as the politically
mobilized Christian evangelical movement. Here's my list. Additions
and amendments (not all of which I'll accept, of course) welcome:
Few of the issues of interest to the politically mobilized
Christian evangelical movement are off the wall,[1]<!--[endif]-->
and a fair number are close to acceptan! ce already. (1)
Obviously, the overruling of Roe v. Wade, but not .
. . the adoption of a constitutional requirement that abortion be
lawful only under quite restricted conditions. (2) Acknowledgment
by government of the (essential) role of Christianity in the creation
of the United States , and in embedding basic values in American
political culture. (3) Extension of
public support for faith-based institutions, including religiously
affiliated schools, whether through vouchers or direct grants. (4)
Protection from the application of anti-discrimination laws
to those whose decisions, otherwise covered by such laws, rest on
religious grounds. (5) A clust! er of
issues related to the teaching of the Darwinian theory of evolution in
public schools: (a) Establishing the
proposition that it is constitutionally permissible to characterize
that theory as a “mere” theory; (b) allowing public schools to teach
alternatives to Darwinian theory even though those alternatives can be
characterized as religious; (c) requiring public schools to reach such
alternatives. (6) Again, a cluster of
issues aimed at eliminating some regulations imposed on religiously
affiliated schools.
<!--[if !supportFootnotes]-->
<!--[endif]-->
<!--[if !supportFootnotes]-->[1]<!--[endif]-->
The only one I can think of is the possibility that governments could
issue declarations that the United States “is” a Christian nation, and
it is not clear to me that there is any real (as distinct from
rhetorical) interest in the movement in seeing that legislatures adopt
such declarations.
-- Mark Tushnet Georgetown University Law Center 600 New Jersey Ave. NW Washington, DC 20001 202-662-9106 (voice) 202-662-9497 (fax)
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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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