Religious Neutrality and Voluntarism

[Berg, Thomas C.]

I certainly agree that religious belief and activity tend to thrive in an
atmosphere of "religious neutrality" and "religious voluntarism" -- in which
the success of religious communities depends on the vigor and power of their
beliefs, rather than on the intervention of the government.  This principle
surely lies at the heart of America's disestablishment decision, and it has
borne out in experience.

I would only comment that what constitutes religious neutrality and
voluntarism becomes more complicated in an atmosphere of active, pervasive
government.  First, while religious life has been vital even without
government promotion of religion in public schools etc., I suspect that this
vitality has a lot to do with the fact that government has also historically
shown regard for the freedom of private religious activity, either by not
legislating in an area at all or by exempting religious organizations and
individual religious conscience  from restrictive laws.  (This is what I
meant when I said that the better course for religious vitality is not
government sponsorship, but rather government steps to preserve a vigorous
private sector in religion.)  But Marci, of course, very often fights
against such exemptions -- on the ground that religion should be subject to
whatever laws everyone else is, even in the modern world in which there are
many more restrictive laws than there used to be.

Second, active government also complicates the issue of government financial
aid going to religious schools, social services, and so forth.  It's true
that such aid poses the risk of making religious organizations dependent on
government rather than on their own vigor (historically this risk is one of
the prime reasons for opposing government aid to religious organizations).
But active government also subsidizes the competitors to religious schools
and social services -- public services and secular private services -- and
this subsidization of competitors likewise threatens the ability of
religious organizations and communities to succeed based on the power or
attractiveness of their beliefs.  You're not competing on your own merits if
your competitors can charge less, or save costs, because they get government
subsidies.  Given this fact, I think that religious organizations and
individuals generally should be allowed to decide whether they want to
participate in government funding programs, and should not be excluded by
the legislature or by court decisions.

Tom Berg, University of St. Thomas School of Law, Minnesota

_

 

Marci, of course, is more than capable of speaking for herself. But I would 
think that the reference to religious "intensity of belief" that thrives in 
an environment of religious neutrality may relate to the inspiration and 
energy many  religious groups experience in a regime of religious 
voluntarism  -- where the success of faith-based congregations and 
communities depends on the personal commitment of religious individuals and 
associations and the power of their beliefs, rather than their ability to 
use the government to communicate self affirming messages or to subsidize 
their activities. 



Alan Brownstein 
UC Davis 


At 04:33 PM 3/4/2005 -0600, you wrote: 
>Tom: I like the term, and I don't think it's so ugly as you suggest. 
> 
>Marci: Do you think it is empirically true that, as you say, "The more the 
>government is constrained to be neutral with respect to religion over the 
>years, the more diversity and intensity of belief this society 
>expresses"?  I suppose I might agree with the diversity point, but 
>intensity I would agree with only in a very limited sense.  Thus, I think 
>Tom is right about the secularizing "slippery slope," if you will (to use 
>a favored phrase of our esteemed moderator).  In addition, much of the 
>public square agitating is clearly a response to what are taken to be 
>hostile governmental -- let's face it, mostly judicial -- rulings. 
> 
>Richard Dougherty 
> 
> 
>[EMAIL PROTECTED] wrote: 
>Tom-- Thanks very much for your thoughtful answer.  I completely agree 
>with you on the first point.  As a matter of fact, I think there is very 
>little likelihood that this society can be secularized by government or 
>any other entity.  The more the government is constrained to be neutral 
>with respect to religion over the years, the more diversity and intensity 
>of belief this society expresses.  The public square (which is to be 
>distinguished from government space) is filled with religious ideas, 
>political activity, and lobbying. 
> 
>  Thus, I view the "secularization" thesis (used to justify government 
> financial and other support for religion) as a myth at best, and a cover 
> for intense political activity at worst, which is why I asked for 
> clarification on what you meant by artificial secularization. 
> 
>Marci 
> 
>> 
>>Tom-- Thanks very much for your thoughtful answer.  I completely agree 
>>with

Re: Protestants and non-Protestants

[A.E. Brownstein]

Marci, of course, is more than capable of speaking for herself. But I would 
think that the reference to religious "intensity of belief" that thrives in 
an environment of religious neutrality may relate to the inspiration and 
energy many  religious groups experience in a regime of religious 
voluntarism  -- where the success of faith-based congregations and 
communities depends on the personal commitment of religious individuals and 
associations and the power of their beliefs, rather than their ability to 
use the government to communicate self affirming messages or to subsidize 
their activities.


Alan Brownstein
UC Davis
At 04:33 PM 3/4/2005 -0600, you wrote:
Tom: I like the term, and I don't think it's so ugly as you suggest.
Marci: Do you think it is empirically true that, as you say, "The more the 
government is constrained to be neutral with respect to religion over the 
years, the more diversity and intensity of belief this society 
expresses"?  I suppose I might agree with the diversity point, but 
intensity I would agree with only in a very limited sense.  Thus, I think 
Tom is right about the secularizing "slippery slope," if you will (to use 
a favored phrase of our esteemed moderator).  In addition, much of the 
public square agitating is clearly a response to what are taken to be 
hostile governmental -- let's face it, mostly judicial -- rulings.

Richard Dougherty
[EMAIL PROTECTED] wrote:
Tom-- Thanks very much for your thoughtful answer.  I completely agree 
with you on the first point.  As a matter of fact, I think there is very 
little likelihood that this society can be secularized by government or 
any other entity.  The more the government is constrained to be neutral 
with respect to religion over the years, the more diversity and intensity 
of belief this society expresses.  The public square (which is to be 
distinguished from government space) is filled with religious ideas, 
political activity, and lobbying.

 Thus, I view the "secularization" thesis (used to justify government 
financial and other support for religion) as a myth at best, and a cover 
for intense political activity at worst, which is why I asked for 
clarification on what you meant by artificial secularization.

Marci
Tom-- Thanks very much for your thoughtful answer.  I completely agree 
with you on the first point.  As a matter of fact, I think there is very 
little likelihood that this society can be secularized by government or 
any other entity.  The more the government is constrained to be neutral 
with respect to religion over the years, the more diversity and intensity 
of belief this society expresses.  The public square (which is to be 
distinguished from government space) is filled with religious ideas, 
political activity, and lobbying.

Thus, I view the "secularization" thesis (used to justify government 
financial and other support for religion) as a myth at best, and a cover 
for intense political activity at worst, which is why I asked for 
clarification on what you meant by artificial secularization.  Marci
(1) The belief that government is having this secularizing effect, and 
that it⠙s a problem, is (rightly or wrongly) held by people across 
varying faiths, not just by evangelical Protestants.  (2) To ensure that 
a secular government doesn⠙t secularize society, government can take 
steps to preserve a vigorous private sector in religion.


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Re: Protestants and non-Protestants

[Richard Dougherty]

Tom: I like the term, and I don't think it's so ugly as you suggest.
Marci: Do you think it is empirically true that, as you say, "The more
the government is constrained to be neutral with respect to religion over
the years, the more diversity and intensity of belief this society expresses"? 
I suppose I might agree with the diversity point, but intensity I would
agree with only in a very limited sense.  Thus, I think Tom is right
about the secularizing "slippery slope," if you will (to use a favored
phrase of our esteemed moderator).  In addition, much of the public
square agitating is clearly a response to what are taken to be hostile
governmental -- let's face it, mostly judicial -- rulings.
Richard Dougherty
 
[EMAIL PROTECTED] wrote:
Tom-- Thanks very much for your thoughtful answer.  I completely
agree with you on the first point.  As a matter of fact, I think there
is very little likelihood that this society can be secularized by government
or any other entity.  The more the government is constrained to be
neutral with respect to religion over the years, the more diversity and
intensity of belief this society expresses.  The public square (which
is to be distinguished from government space) is filled with religious
ideas, political activity, and lobbying.
 Thus, I view the "secularization" thesis (used
to justify government financial and other support for religion) as a myth
at best, and a cover for intense political activity at worst, which is
why I asked for clarification on what you meant by artificial secularization.
 
Marci
 
 
Tom--
Thanks very much for your thoughtful answer.  I completely agree with
you on the first point.  As a matter of fact, I think there is very
little likelihood that this society can be secularized by government or
any other entity.  The more the government is constrained to be neutral
with respect to religion over the years, the more diversity and intensity
of belief this society expresses.  The public square (which is to
be distinguished from government space) is filled with religious ideas,
political activity, and lobbying.
Thus, I view the
"secularization" thesis (used to justify government financial and other
support for religion) as a myth at best, and a cover for intense political
activity at worst, which is why I asked for clarification on what you meant
by artificial secularization.  Marci  
(1)
The belief that government is having this secularizing effect, and that
it’s a problem, is (rightly or wrongly) held by people across
varying faiths, not just by evangelical Protestants.  (2) To ensure
that a secular government doesn’t secularize society, government
can take steps to preserve a vigorous private sector in religion.
 

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Re: Van Orden Transcript

[Marty Lederman]

And here's the McCreary County 
transcript:
 
http://wid.ap.org/documents/scotus/050302mccrearycounty.pdf

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Friday, March 04, 2005 4:55 
PM
  Subject: Van Orden Transcript
  
   http://www.scotusblog.com/movabletype/archives/2005/03/transcripts_in_1.html 

  Transcript(s) 
  in Ten Commandments Cases
  03:45 PM | Marty Lederman | Comments 
  (1) | TrackBack 
  (0) 
  The Associated Press has posted an earlier-than usual transcript of 
  Wednesday's oral argument in the Texas Ten Commandments case. We're still 
  checking to see whether the transcript in the Kentucky case, McCreary 
  County, is also available.
  
  

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Van Orden Transcript

[Marty Lederman]

 http://www.scotusblog.com/movabletype/archives/2005/03/transcripts_in_1.html
Transcript(s) 
in Ten Commandments Cases
03:45 PM | Marty Lederman | Comments 
(1) | TrackBack 
(0) 
The Associated Press has posted an earlier-than usual transcript of 
Wednesday's oral argument in the Texas Ten Commandments case. We're still 
checking to see whether the transcript in the Kentucky case, McCreary 
County, is also available.
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RE: Ten Commandments: My Prediction

[Newsom Michael]

Title: Message









The cases you refer to don’t capture
the social reality of religious bullying.  They don’t gainsay the
point made by Alley and by Barner-Barry.  You have to show that they have
it wrong.  Citing four or five cases doesn’t do the job.  Whether
you mean to or not, you are minimizing the claims made by these authorities,
without even meeting their arguments head on.  This attempt to minimize is
neither effective nor helpful in understanding the nature of the problem at
hand.  

 

Second, I don’t think that these
cases constitute bullying because they don’t involve intimidation. 
You appear to minimize the impact or consequence of bullying, draping the
mantle of “free speech” over it.  Defending or minimizing
bullying is problematic.

 

Third, I am not sure that “discrimination”
is a fair characterization of what happened in these cases, or at least some of
them.  I don’t start from the baseline that denying religion A
permission to do something that it wants to do is necessarily “discrimination
against” religion A   As you appear to use the term, the United States government discriminated
against the Mormons in Reynolds.  I would agree that the United States government bullied the
Mormons, singled them out with the intention of forcing Mormons underground or
to change their views on plural marriage.  But to say that the Mormons
were “discriminated against” would be most unhelpful.

 

Fourth, if you read my writings carefully,
you will see that I have never claimed that only Protestants do the work of the
Protestant Empire.  I have merely claimed that when it comes to bullying,
in the post Engel/Schempp era, most of the bullying (and I don’t mean “discrimination,”
certainly not as you appear to use the term), has been done by evangelical
Protestants, and I offer up as authority the detailed scholarly works of Alley
and Barner-Barry. 

 

Fifth, how do you know that the “bad
guys” in the cases you cite were not Protestants?  Again, if you
read my work carefully, I have never claimed that Protestants always agreed
with each other, particularly at the level of tactics and strategy.  

 

Sixth (and related to the third point),
some religious groups are more aggressive, pushy and persistent than
others.  Obviously some people are going to try to restrain pushy groups
on the grounds that their very aggressiveness interferes with the
constitutionally protected rights of their targets.  Is that
discrimination?  (If it is, then I take it that you would say that Engel
and Schempp, or at least some of their progeny, were wrongly decided.)

 

Seventh (more on “discrimination”),
I do not accept the proposition that religious speech is just like any other
speech and should be treated the same way.  Such a view guts the Religion
Clauses. 

 

Eighth, if you look carefully at some of
the studies of the religious affiliation of Americans, you will find that
(including African-Americans) evangelical Protestants constitute a majority of
the population of the United States.

 

Ninth, there is no historical or experiential
basis for equating Protestants and Atheists (or Jews or Secularists for that
matter).  The Protestant Empire label is neither crude nor belligerent. 
It is simply an American fact in a way that an Atheist or Jewish or Secularist
Empire is NOT an American fact.  (And even PROTESTANT religious historians
like Martin Marty would agree with me on this point.  But of course one
has to read their works.)    But then one has to pay attention
to history and facts, and not loaded abstractions.  Making bad or false
analogies or comparisons does little to advance a serious discussion of a
matter.  (I don’t know how else to read you final paragraph in
particular.  Sorry!) 

 

-Original Message-
From: Volokh, Eugene
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday,
 March 02, 2005 8:05 PM
To: Law &
 Religion issues for Law Academics
Subject: RE: Ten Commandments: My
Prediction

 



    Cases
such as Lamb's Chapel, Widmar, Rosenberger, Pinette, and many lower court cases
all involved the government discriminating against religious groups -- groups
that were quite likely religious minorities at least in their intensity of belief. 
Many of the discriminated-against groups may have been Protestants, but I
rather doubt that evangelical Christians of the sort who ran Wide Awake were a
majority at the University of Virginia (or are even a quantitative majority in
the country as a whole, given that many Americans are non-Protestants and many
Protestants aren't highly observant).  I take it that this wasn't the
Protestant Empire doing this.  Was it the Atheist, Agnostic, Jewish, and
Secularist Conspiracy, perhaps?





 





    Of course, if one defines
discrimination against religious groups as wonderful behavior, then the
Atheist, Agnostic, Jewish, and Secularist Conspiracy is to be lauded for the
discrimination.  But it sure seems like "bull[ying]" to me.





 





    Incidentally, if peo

Good News From Across the Big Pond

[Rick Duncan]

Here's the problem. Suppose a public school in the USA has a "no headgear" dress code, and we have two religious groups that seek a religious accommodation. "Moderate" Christians (say, Methodists and Episcopalians) wear green headgear, and "extremist" Christians (say, Evangelicals and Catholics) wear red headgear. The School decides to permit green headgear for the "moderate" denominations, but not the red headgear for the "extremist" denominations.
 
Isn't this what happened over in the UK? The school accommodated some Muslims and allowed them to wear the "shalwar kameez," but refused to accommodate "extremist" Muslims and their "jilwab." Moreover, this distinction may have been based, at least in part, on religious bigotry (as the Times put it, because "other students, including [some] Muslims, said they felt threatened by the jilbab because they associated it with extremism.")
 
In the USA, this arguably constitutes a non-neutral burden under Smith and Lukumi and denominational discrimination under Larson v. Valente. Am I wrong?
 
Is this kind of denominational non-neutrality a factor under European law? 
 
By the way, I am re-sending this post because it appears some of you may not have received it yesterday. My apologies if you are getting this for the second time.
 
Rick Duncan
Steven Jamar <[EMAIL PROTECTED]> wrote:
Don't we do this all the time over here? An orthodox Jew can sport a beard and other dress despite an employer's general policy against this, while a reform Jew cannot. Muslim women can wear scarves in school even though not all do, because for some it is felt to be required and others not.Or has this law changed?On Thursday, March 3, 2005, at 02:49 PM, Rick Duncan wrote:> Unequal accommodations with respect to religious attire--to > accommodate "moderate" Muslims and their dress, but not "extremist" > Muslims and their dress--would be a serious doctrinal problem both > under FEC and EC (and EPC) here on this side of the Pond? No? > Especially if there were evidence that the distinction was made > because some students don't like the faiths perceived to > be"extremist.">  >!
 ; Imagine
 a public school in America that adopted a uniform policy that > allowed one kind of religious uniform, but not another. Denominational >  discrimination under Larson and non-neutral under Smith. No?>  > Again, I don't know European religious liberty law, but if I were > litigating a case like this, I would want to know if this kind of > denominational discrimination is permissible.>  > Rick Duncan>> Steven Jamar <[EMAIL PROTECTED]>wrote:>> Isn't an accommodation denominational discrimination? And don't we> encourage and even require that? It is troublesome only in the sense> that sometimes applying the requirement is difficult or "troublesome."> Is that what you meant or did you mean doctrinally troublesome?>> Steve Jamar> On Thursday, March 3, 2005, at 02:16 PM, Rick Duncan wrote:>> > One problem with the uniform !
 policy is
 that it does accommodate some> > religious students, but not others. Here is the New York Times > report:> > "In contrast to French state schools, where students are prohibited> > from wearing head scarves, Denbigh allows girls a choice: wearing> > standard pants or skirts, or dressing in a shalwar kameez, a> > traditional Muslim outfit consisting of pants covered by a tunic. > Head> > scarves are allowed if they meet certain criteria."!> >  > > But they don't allow the "jilwab," apparently because it is regarded> > as being associated with Muslim "extremism." This looks like> > denominational discrimination to me. "Moderate" Muslims are allowed > to> > wear the "shalwar kameez," but "extremist" Muslims are not allowed to> > wear the jilwab.> >  > > I know almost nothing about European law (except tha!
 t which
 has crept> > into U.S. Supreme Court opinions), but it seems to me that under any> > kind of religious liberty/religious equality protection > denominational> > discrimination such as this should be troublesome. No?> >  > > Rick Duncan> >> --> Prof. Steven D. Jamar vox:> 202-806-8017> Howard University School of Law fax:> 202-806-8428> 2900 Van Ness Street NW> mailto:[EMAIL PROTECTED]> Washington, DC 20008> http://www.law.howard.edu/faculty/pages/jamar>> "Rarely do we find men who willing! ly engage in hard, solid thinking.> There is an almost universal quest for easy answers and half-baked> solutions. Nothing pains some people more than having to think.">> - Martin Luther King Jr., "Strength to Love", 1963>>>
 ___> 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 t

Re: Good News From Across the Big Pond

[Will Linden]

At 02:58 PM 3/3/05 -0500, you wrote:
Don't we do this all the time over
here?  An orthodox Jew can sport a beard and other dress despite an
employer's general policy against this, while a reform Jew cannot. 
Muslim women can wear scarves in school even though not all do, because
for some it is felt to be required and others not. 
Or has this law changed? 
 But I read that a Sikh train passenger had been rousted for wearing
his kirpan. (The other cases that I can recall were in Canada or
Europe).


On Thursday, March 3,
2005, at 02:49 PM, Rick Duncan wrote: 
Unequal accommodations with respect
to religious attire--to accommodate "moderate" Muslims and
their dress, but not "extremist" Muslims and their dress--would
be a serious doctrinal problem both under FEC and EC (and EPC) here on
this side of the Pond? No? Especially if there were evidence that the
distinction was made because some students don't like the faiths
perceived to be"extremist." 
  
Imagine a public school in America that adopted a uniform policy that
allowed one kind of religious uniform, but not another.
Denominational  discrimination under Larson and non-neutral
under Smith. No? 
  
Again, I don't know European religious liberty law, but if I were
litigating a case like this, I would want to know if this kind of
denominational discrimination is permissible. 
  
Rick Duncan 
Steven Jamar <[EMAIL PROTECTED]> wrote: 

Isn't an accommodation denominational discrimination? And don't we 
encourage and even require that? It is troublesome only in the sense

that sometimes applying the requirement is difficult or
"troublesome." 
Is that what you meant or did you mean doctrinally troublesome? 

Steve Jamar 
On Thursday, March 3, 2005, at 02:16 PM, Rick Duncan wrote: 
> One problem with the uniform policy is that it does accommodate some

> religious students, but not others. Here is the New York Times
report: 
> "In contrast to French state schools, where students are
prohibited 
> from wearing head scarves, Denbigh allows girls a choice: wearing

> standard pants or skirts, or dressing in a shalwar kameez, a 
> traditional Muslim outfit consisting of pants covered by a tunic.
Head 
> scarves are allowed if they meet certain criteria."! 
>   
> But they don't allow the "jilwab," apparently because it
is regarded 
> as being associated with Muslim "extremism." This looks
like 
> denominational discrimination to me. "Moderate" Muslims
are allowed to 
> wear the "shalwar kameez," but "extremist"
Muslims are not allowed to 
> wear the jilwab. 
>   
> I know almost nothing about European law (except that which has
crept 
> into U.S. Supreme Court opinions), but it seems to me that under any

> kind of religious liberty/religious equality protection
denominational 
> discrimination such as this should be troublesome. No? 
>   
> Rick Duncan 
> 
-- 
Prof. Steven D. Jamar vox: 
202-806-8017 
Howard University School of Law fax: 
202-806-8428 
2900 Van Ness Street NW 
mailto:[EMAIL PROTECTED]

Washington, DC 20008 
http://www.law.howard.edu/faculty/pages/jamar 
"Rarely do we find men who willing! ly engage in hard, solid thinking. 
There is an almost universal quest for easy answers and half-baked 
solutions. Nothing pains some people more than having to think." 

- Martin Luther King Jr., "Strength to Love", 1963 

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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902 
Red State Lawblog: www.redstatelaw.blogspot.com 
"When the Round Table is broken every man must foll! ow 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 

 
Celebrate Yahoo!'s 10th Birthday! 
Yahoo! Netrospective: 100 Moments of the Web ___ 
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Prof. Steven D. Jamar   vox:  202-806-8017 
Howard University School of Law fax:  202-806-8567 
2900 Van Ness Street NW  mailto:[EMAIL PROTECTED] 
Washington, DC  20008