Chip asks me:
"Rick keeps harping on "liberty" and the problems of incorporating the
Establishment Clause; those problems are well-known. Suppose the
Clause were disincorporated. Does Rick see any constitutional problem
with a city that puts a permanent cross on City Hall and a sign on the
lawn of City Hall that says "Christians welcome here"? There is no
explicit expression that says anyone is unwelcome, and no showing of
material discrimination against non-Christians. Are that cross and
that sign constitutionally OK, Rick? (please don't hide behind
Christmas displays -- deal with the hypothetical)."
Okay.
I'll play. If we assume that the EC is not incorporated--or is only
incorporated to the extent of protecting substantial burdens on liberty
interests (i.e., to protect against forced participation in religious
practices or prayer)--then the cross on the lawn of City Hall does not
violate the EC (because the EC does not apply at all). But not
everything that is bad is constitutionally forbidden and not everything
that is good is constitutionally required.
Indeed, the best check on this kind of practice is a combination of state
constitutional law and democratic self government.
What
about a city that puts up a large "no homophobes allowed" sign on the
lawn of city hall. Is that unconstitutional? Does it make many
citizens--and almost all conservative religious citizens--feel unwanted
in the halls of government? Why should we allow govt to express such
hurtful opinions?
The point is that all kinds of government speech is
offensive to some citizens, and makes some citizens feel like political
and cultural outsiders.
The Court and the law prof community
exaggerates the harm caused by governmental religious speech and
minimizes the harm caused by governmental secular speech. When a
citizen seeks to enjoin hurtful secular speech by government, we say we
can't allow a heckler's veto to silence govt and the rights of the
willing audience. When a citizens seeks to enjoin hurtful religious
speech by govt, we say he has a right to silence the govt under the EC.
I
guess, to return to my hypothetical (which is more typical than Chip's
example), I think the Gay Pride and Nativity displays should be treated
the same under the law--either they are both subject to being silenced
by an offended passerby, or they both may stand and we tell offended
persons to avert their eyes.
Perhaps the First Amendment
should be read as a whole (FS, FE, & EC) to forbid government from
endorsing any idea that offends anyone's sincere beliefs and
conscience. No one should be told that he or she is a political,
cultural or religious outsider as a result of the govt's speech. Of
course, public schools may have to close and public parks may have to
be stripped of most displays if we decide to respect everyone's beliefs
from the harm of offensive govt endorsements. But that is the price we
pay for a society that respects the hurt feelings of everyone.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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