Doug Laycock writes:
"Having said all that, I don't think the incentive effects are the
principal reason for objecting to government religious displays. The
sense of gratuitous affront to religious minorities does much of the
work here; the incentives to religions to fight for control of the
government if government is going to be taking positions on religion
does much of the work. Substantive neutrality was always an attempt to
reconcile multiple intuitions about the Religion Clauses -- neutrality,
liberty, separation, voluntaryism -- and I never claimed that
substantive neutrality alone could do all the work without recourse to
the underlying principles it was trying to reconcile."
I think this is the key to why Doug and I come out differently here. Doug
emphasizes the
"sense of gratuitous affront to religious minorities"caused when govt speech
includes some, but not all, religious expression. But I see the "gratuitous
affront" to people of faith when govt celebrates all sorts of secular subgroups
and their special days (Gay Pride, Cinco de Mayo, etc), but celebrates no
religious subgroups and their special days.
In other words, to remain rigidly neutral among all religions, Doug's EC treats
all religious subgroups as outsiders in public schools and in the public
square. As I said, when religious conservatives must suffer Gay Pride Displays
in the schools, but are told that displays recognizing religious holidays are
prohibited because they are considered offensive to some members of the
community, they suffer terribly from the kind of gratuitous affront that Doug
says is the principal reason for an EC that prohibits governmental religious
displays.
A rule that cause the same kind of harm it is supposed to prevent is a rule
that needs major recalibration.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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