Chris Lund writes in part as follows: "if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it."
But this is inevitable, isn't it? There will be definitional or categorization issues regardless of whether a prohibition on the government "speaking religiously" is construed broadly or more narrowly. E.g., under a broad prohibition on government religious speech, what about "In God We Trust" or "God Save the United States"? Religious speech and therefore invalid? Christmas displays that include religious symbols along with other symbols? Christmas displays without such symbols but nonetheless celebrating Christmas? An invocation--whether or not so designated--that speaks in general terms about faith and hope but not about God? Would it matter if the speaker is a member of the clergy? Perhaps a broad prohibition would minimize the definitional/categorization issues, but I'm not entirely sure about that. Dan Conkle ******************************************* Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ******************************************* -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund Sent: Friday, July 25, 2008 4:03 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: RE: "Political divisions along religious lines" It's true that the battles over the secondary questions have been limited (although some, like Hinrichs v. Bosma, have been the source of some controversy). But part of it may be that nothing has reached the Supreme Court yet, and so there's no nation-wide, high-profile definitive rule that people read about in the papers. Say the Supreme Court takes the case, and holds legislative prayer in Jesus' name unconstitutional. This would cause a serious culture war problem too, wouldn't it, maybe on the order of striking down legislative prayer altogether? Committing it all to the political branches is the other solution. It would keep the problems and divisions local and out of the public limelight -- but they will still exist. Minority listeners attending meetings will still feel aggrieved; perhaps candidates in local elections would start to run on prayer-related questions. I didn't mean to suggest that striking down legislative prayer was the least controversial of the Court's options. But I do think that if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it. And I can't help but think that if we didn't let government speak religiously, people wouldn't expect it to. Maybe this is utter foolishness, but I reread Simpson (the case of the Wiccan woman being excluded from being able to offer a legislative prayer) last week. Chesterfield County didn't have legislative prayer until 1984, when in the wake of Marsh, it decided to do so. It was the judicial ratification of legislative prayer that prompted Chesterfield County to adopt it. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 1:16 PM >>> But the battles over secondary questions, as best I can tell, tend to be quite low-profile. A few people care fairly deeply; most don't. What's more, the battles happen in relatively few places. A Supreme Court decision invalidating legislative prayer everywhere in the country, notwithstanding the tradition going back to the First Congress, would become notorious and would continue to be notorious -- like the school prayer decision, but probably more so, because the contradiction with the revealed views of the Framers would be even stronger. Like a decision striking down the Pledge of Allegiance, it would become an emblem of the culture wars, and something that I suspect would substantially exacerbate those culture wars. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Christopher > Lund > Sent: Friday, July 25, 2008 10:26 AM > To: Volokh, Eugene; religionlaw@lists.ucla.edu > Subject: Re: "Political divisions along religious lines" > > I agree with this, but your account only talks about the divisions > caused by the first decision. Striking down legislative prayer would > indeed be controversial, more so than approving it. I think that may > be part of why Marsh took the road it did. > > But, as we've seen, approving legislative prayer means having real > battles over secondary questions -- over who will get to pray and what > they will get to say. Those are nasty fights. > To me, they are the most perfect proof that the holding of Marsh was > dead wrong. For they demonstrate, don't they, that whether or not > legislative prayer is considered a religious establishment by the > Court, the people surely view it that way. For whatever else, > legislative prayer certainly bears that central hallmark of religious > establishments -- the willingness to fight tooth and nail for control > of it. > > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > >>> [EMAIL PROTECTED] 07/25/08 11:34 AM >>> > If the Establishment Clause was indeed supposed to prevent > "political divisions along religious lines," what do we think would > cause more such divisions -- legislative prayer allowed under Marsh > (which irks many law professors, but likely a small minority of > conservative Christians and a small minority of atheists, agnostics, > and members of minority non-Christian religions) or the dissent's > position in Marsh? Acceptance of the Pledge of Allegiance with "under > God," or a Court decision striking down the Pledge? > > My sense is that on balance the Court's Establishment Clause > government speech jurisprudence has caused much more political > divisions along religious lines than it has prevented -- but the > Brennan/Marshall/Stevens view would have caused vastly more such > divisions. Now perhaps that shouldn't matter, because we should let > justice be done (assuming that justice somehow demands an end to > religious speech by the government, a theory that strikes me as > unproven) though the heavens fall. But if the goal of the > Establishment Clause is indeed to prevent political divisions along > religious lines, it seems to me that Scalia et al. > would accomplish that best (at least in their views of government > speech), O'Connor's and Breyer's views are a weak second, and the > Brennan/Marshall/Stevens is what would be an "utter[] fail[ure]." > > Eugene > > > Chris Lund writes: > > > "That kind of jockeying for government recognition of particular > > denominations-- or for an implicit government statement rejecting > > supposed antireligious views-- seems to be just the kind of > political > > divisions along religious lines that the Establishment Clause was > > supposed to prevent." > > > > Yes indeed to Professor Friedman's statement, and (I would > > add) it's also the sort of divisions that Marsh itself was > trying to > > prevent. I tend to see Marsh as an earlier Van Orden -- government > > gets to act religiously, but not too much. Breyer says in > Van Orden > > that upholding the momument (not striking it down) is the > best way to > > avoid "religiously based divisiveness." I bet Marsh court had a > > thought or two along those lines -- that the best way to keep the > > peace was by approving legislative prayer with some (what > it thought > > to be modest) strings attached. > > > > Can we all agree that Marsh has utterly failed in this regard? > _______________________________________________ > 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. _______________________________________________ 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.
