RE: Government Religious Displays and Substantive Neutrality
Let's assume, for purposes of argument, that Jeffries and Ryan are correct in saying that elites support separation of church and state and ordinary folks don't. How does that illuminate any discussion of the meaning of the Establishment Clause? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Thursday, April 02, 2009 12:56 PM To: Law & Religion issues for Law Academics Subject: Re: Government Religious Displays and Substantive Neutrality Art Spitzer wrote: In a message dated 3/31/09 6:02:12 PM, layco...@umich.edu writes: Here's one more way to think about it: ... the rule that government must be religiously neutral [is] a special protection for religion Government can not try either to coerce you or persuade you to change your views about religion. That ... is the greatest level of possible protection. Yes, but it's an entirely hypothetical (and thus unimportant) protection to those who are comfortably in the majority, and who therefore can, without perceived risk to their own views, seek to get the government to coerce or persuade others to change their views. Isn't that why so many local government officials would react to Doug's excellent point with blank stares? It just doesn't relate to their world. Art Spitzer ACLU It took me a couple of days to run down the reference, but I love the way Profs. Jeffries and Ryan describe the huge gap in the way cultural elites and ordinary folks think about the EC. Jeffries and Ryan observe that "the controversy over school prayer revealed a huge gap between the cultural elite and the rest of America. People generally may have supported school prayer and Bible reading, but the leadership class did not." They also note that "elite support for the Supreme Court's secularization project was clearly visible in the activities of law professors and deans." See Jeffries & Ryan, A Political History of the establishment Clause, 100 MICH. L. REV. 279, 325 (2001). I really enjoyed this thread. Cheers, Rick ___ 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.
Re: Government Religious Displays and Substantive Neutrality
Art Spitzer wrote: In a message dated 3/31/09 6:02:12 PM, layco...@umich.edu writes: Here's one more way to think about it: ... the rule that government must be religiously neutral [is] a special protection for religion Government can not try either to coerce you or persuade you to change your views about religion. That ... is the greatest level of possible protection.Yes, but it's an entirely hypothetical (and thus unimportant) protection to those who are comfortably in the majority, and who therefore can, without perceived risk to their own views, seek to get the government to coerce or persuade others to change their views. Isn't that why so many local government officials would react to Doug's excellent point with blank stares? It just doesn't relate to their world. Art Spitzer ACLU It took me a couple of days to run down the reference, but I love the way Profs. Jeffries and Ryan describe the huge gap in the way cultural elites and ordinary folks think about the EC. Jeffries and Ryan observe that "the controversy over school prayer revealed a huge gap between the cultural elite and the rest of America. People generally may have supported school prayer and Bible reading, but the leadership class did not." They also note that "elite support for the Supreme Court's secularization project was clearly visible in the activities of law professors and deans." See Jeffries & Ryan, A Political History of the establishment Clause, 100 MICH. L. REV. 279, 325 (2001). I really enjoyed this thread. Cheers, Rick ___ 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.
Re: Government Religious Displays and Substantive Neutrality
In a message dated 3/31/09 6:02:12 PM, layco...@umich.edu writes: > Here's one more way to think about it: ... the rule that government must > be religiously neutral [is] a special protection for religion > Government > can not try either to coerce you or persuade you to change your views about > religion. That ... is the greatest level of possible protection. > Yes, but it's an entirely hypothetical (and thus unimportant) protection to those who are comfortably in the majority, and who therefore can, without perceived risk to their own views, seek to get the government to coerce or persuade others to change their views. Isn't that why so many local government officials would react to Doug's excellent point with blank stares? It just doesn't relate to their world. Art Spitzer ACLU ** Feeling the pinch at the grocery store? Make dinner for $10 or less. (http://food.aol.com/frugal-feasts?ncid=emlcntusfood0001) ___ 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.
RE: Government Religious Displays and Substantive Neutrality
Alan's and my last posts crossed in the mail, so to speak. I'll just let this sit for a while to see whether others have comments. Mark S. Scarberry Pepperdine University School of Law From: Scarberry, Mark Sent: Tuesday, March 31, 2009 3:46 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Government Religious Displays and Substantive Neutrality I thought Alan's post was invoking the free speech clause by saying that, if the govt reserved a portion of a park (a traditional public forum) for expression of one religious view, he "presume[d] that would be unconstitutional." And then he analogized to a case in which govt required that private expression to be by way of a permanent structure (a monument) and then to a case in which govt accepted a gift of such a permanent structure. I thought the point was that if the first case violated the Constitution, then the second and third must also violate it. My point is that the same move can be made with regard to secular speech; the first case violates the Free Speech Clause, and thus, if Alan's argument by analogy holds, so must the second and third. But the third clearly does not (with regard, e.g., to war memorials). Thus the analogy does not seem to hold, and any conclusion reached by way of it with regard to religious expression should be questioned. If Alan is saying that his analogy is a good one for Establishment Clause cases even though it doesn't work for Free Speech cases, then I have to ask whether the analogy advances the analysis. Put another way, if Alan meant that the first case (reservation of a part of a park for a particular religious group's expression) was an Establishment Clause violation rather than a Free Speech Clause violation (even though it clearly is a Free Speech violation), then he could respond that his argument by analogy works for Establishment Clause cases even though it does not work for Free Speech Clause cases. But then the analogy doesn't do any work; we only accept it because we already have concluded that the monument with the religious message violates the Establishment Clause. At least that's how it looks to me. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, March 31, 2009 2:59 PM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I think Mark's post is helpful in returning to the original source of this thread, but my post was not intended to suggest free speech analogies. As Mark notes, there may be interesting free speech questions that are implicated by my examples, but my focus is one the Establishment Clause not the Free Speech Clause. Just as the Summum case was litigated on free speech grounds and did not directly address Establishment Clause issues, we can imagine a case that is litigated on Establishment Clause grounds and ignores the free speech issue that may be present. When I wrote that " From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, March 31, 2009 11:27 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality Given Doug's criticism of my earlier post (which undoubtedly means I did not give the matter enough thought before posting and need to clarify or revise my post), I'm reluctant to reengage so soon, but it is worth noting that parts of Alan's analysis would apply even with respect to nonreligious speech (e.g., Rick's examples of secular messages that are offensive to some). If the govt decided to allow one group with a focus on a particular subject (e.g., global warming) and one viewpoint (law must severely limit carbon dioxide emissions) exclusive use of a portion of a park for expressive purposes--while still maintaining its character as a part of a public park--I think there would be a free speech violation, with speech in a traditional public forum being regulated on the basis of content and even viewpoint. If Alan's analogy holds, then allowing adoption of a secular message on a govt monument would also violate the First Am. I suppose that would make war memorials that honor the fallen violative of the First Am (at least absent an equal opportunity for placement of dissenting monuments). I presume that means something does not work with the analogy. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 31, 2009 10:14 AM To: Law & Religion issues
RE: Government Religious Displays and Substantive Neutrality
I thought Alan's post was invoking the free speech clause by saying that, if the govt reserved a portion of a park (a traditional public forum) for expression of one religious view, he "presume[d] that would be unconstitutional." And then he analogized to a case in which govt required that private expression to be by way of a permanent structure (a monument) and then to a case in which govt accepted a gift of such a permanent structure. I thought the point was that if the first case violated the Constitution, then the second and third must also violate it. My point is that the same move can be made with regard to secular speech; the first case violates the Free Speech Clause, and thus, if Alan's argument by analogy holds, so must the second and third. But the third clearly does not (with regard, e.g., to war memorials). Thus the analogy does not seem to hold, and any conclusion reached by way of it with regard to religious expression should be questioned. If Alan is saying that his analogy is a good one for Establishment Clause cases even though it doesn't work for Free Speech cases, then I have to ask whether the analogy advances the analysis. Put another way, if Alan meant that the first case (reservation of a part of a park for a particular religious group's expression) was an Establishment Clause violation rather than a Free Speech Clause violation (even though it clearly is a Free Speech violation), then he could respond that his argument by analogy works for Establishment Clause cases even though it does not work for Free Speech Clause cases. But then the analogy doesn't do any work; we only accept it because we already have concluded that the monument with the religious message violates the Establishment Clause. At least that's how it looks to me. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, March 31, 2009 2:59 PM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I think Mark's post is helpful in returning to the original source of this thread, but my post was not intended to suggest free speech analogies. As Mark notes, there may be interesting free speech questions that are implicated by my examples, but my focus is one the Establishment Clause not the Free Speech Clause. Just as the Summum case was litigated on free speech grounds and did not directly address Establishment Clause issues, we can imagine a case that is litigated on Establishment Clause grounds and ignores the free speech issue that may be present. When I wrote that " From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, March 31, 2009 11:27 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality Given Doug's criticism of my earlier post (which undoubtedly means I did not give the matter enough thought before posting and need to clarify or revise my post), I'm reluctant to reengage so soon, but it is worth noting that parts of Alan's analysis would apply even with respect to nonreligious speech (e.g., Rick's examples of secular messages that are offensive to some). If the govt decided to allow one group with a focus on a particular subject (e.g., global warming) and one viewpoint (law must severely limit carbon dioxide emissions) exclusive use of a portion of a park for expressive purposes--while still maintaining its character as a part of a public park--I think there would be a free speech violation, with speech in a traditional public forum being regulated on the basis of content and even viewpoint. If Alan's analogy holds, then allowing adoption of a secular message on a govt monument would also violate the First Am. I suppose that would make war memorials that honor the fallen violative of the First Am (at least absent an equal opportunity for placement of dissenting monuments). I presume that means something does not work with the analogy. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 31, 2009 10:14 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I fully accept Alan's analysis. Very helpful. Quoting "Brownstein, Alan" : > While I would probably come out in the same place as Doug does on > many of these issues, I might be more explicit than he is in arguing > that substantive neutrality refers to both liberty and equality > values. Liberty standing
RE: Government Religious Displays and Substantive Neutrality
Sorry - my previous post was sent prematurely. My full post is as follows: I think Mark's post is helpful in returning to the original source of this thread, but my post was not intended to suggest just free speech analogies. As Mark notes, there may be interesting free speech questions that are implicated by my examples, but my focus is one the Establishment Clause not just the Free Speech Clause. Just as the Summum case was litigated on free speech grounds and did not directly address Establishment Clause issues, we can imagine a case that is litigated on Establishment Clause grounds and ignores the free speech issues that may be present. When I wrote that "If the government decided that one quarter of an acre of a one hundred acre park is reserved solely for the expressive use of a particular religious faith, I presume that would be unconstitutional, " I was thinking of both constitutional clauses, but there is a split in how courts apply them. There may be a free speech violation here but there is also an Establishment Clause violation. If we litigated a case based on my hypothetical under the Establishment Clause alone, wouldn't you agree, Mark, that there is an Establishment Clause violation? But if that is so, how is the Establishment Clause problem cured by making the speech formally governmental instead of private. I can understand the argument that by taking over the speech as its own, the government has changed the context for free speech purposes - because the free speech clause is primarily directed at government regulation of private speech as opposed to imposing constraints on the government's use of its own resources. But the Establishment Clause is importantly, if not primarily, directed at how the government uses its own resources. That's why I used spending examples in my post as well as property examples. If government deliberately discriminates among religious faiths in its use of government resources in a way that does not create serious incentives for choosing one faith over another, I think those decisions are still unconstitutional under the Establishment Clause - even though similar discrimination among secular belief systems would withstand free speech clause review. Do you disagree, Mark? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, March 31, 2009 11:27 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality Given Doug's criticism of my earlier post (which undoubtedly means I did not give the matter enough thought before posting and need to clarify or revise my post), I'm reluctant to reengage so soon, but it is worth noting that parts of Alan's analysis would apply even with respect to nonreligious speech (e.g., Rick's examples of secular messages that are offensive to some). If the govt decided to allow one group with a focus on a particular subject (e.g., global warming) and one viewpoint (law must severely limit carbon dioxide emissions) exclusive use of a portion of a park for expressive purposes--while still maintaining its character as a part of a public park--I think there would be a free speech violation, with speech in a traditional public forum being regulated on the basis of content and even viewpoint. If Alan's analogy holds, then allowing adoption of a secular message on a govt monument would also violate the First Am. I suppose that would make war memorials that honor the fallen violative of the First Am (at least absent an equal opportunity for placement of dissenting monuments). I presume that means something does not work with the analogy. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 31, 2009 10:14 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I fully accept Alan's analysis. Very helpful. Quoting "Brownstein, Alan" : > While I would probably come out in the same place as Doug does on > many of these issues, I might be more explicit than he is in arguing > that substantive neutrality refers to both liberty and equality > values. Liberty standing alone can't handle the job. If government > gives modest financial incentives to one faith and not another (three > pence in aid), the impact on religious liberty and the incentives > such spending discrimination creates will be minimal or nonexistent. > Even minor regulatory discrimination is unlikely to persuade many > individuals to change their religious beliefs and practices. But > surely a one dollar tax credit to Christians is unconstit
RE: Government Religious Displays and Substantive Neutrality
Mark Scarberry's point is clarifying, and it goes to the heart of Summum. Alan Brownstein's analogy started from the shared principle that government cannot discriminate on the basis of viewpoint with respect to private speech. And that is both an equality and a liberty principle, and it applies to both secular and religious speech. And then he said that when government announces its own viewpoint, that has the same effect as if it had given preferential access to one private viewpoint. That helps clarify where the harm is in government expressing viewpoints on religion, and Alan was supplementing my answer to a question that could be rephrased as what's the harm? No one is going to be converted by all this. But Alan's analogyo does not, by itself, to explain why it is that government cannot adopt secular viewpoints but not religious viewpoints as its own. That depends on other arguments about what decisions are allocated to the political process and what are not. Here's one more way to think about it: Critics of the rule that government must be religiously neutral even in its speech seem to view the rule as a special burden on religion. I view it as a special protection for religion -- your religious views get the highest possible level of protection from from government interference. Government can not try either to coerce you or persuade you to change your views about religion. That higher level of protection has gaps, discussed in my response to Rick, but with respect to religion as such, that is the greatest level of possible protection. Quoting "Scarberry, Mark" : > Given Doug's criticism of my earlier post (which undoubtedly means I did > not give the matter enough thought before posting and need to clarify or > revise my post), I'm reluctant to reengage so soon, but it is worth > noting that parts of Alan's analysis would apply even with respect to > nonreligious speech (e.g., Rick's examples of secular messages that are > offensive to some). If the govt decided to allow one group with a focus > on a particular subject (e.g., global warming) and one viewpoint (law > must severely limit carbon dioxide emissions) exclusive use of a portion > of a park for expressive purposes--while still maintaining its character > as a part of a public park--I think there would be a free speech > violation, with speech in a traditional public forum being regulated on > the basis of content and even viewpoint. If Alan's analogy holds, then > allowing adoption of a secular message on a govt monument would also > violate the First Am. I suppose that would make war memorials that honor > the fallen violative of the First Am (at least absent an equal > opportunity for placement of dissenting monuments). I presume that means > something does not work with the analogy. > > Mark S. Scarberry > Pepperdine University School of Law > > > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock > Sent: Tuesday, March 31, 2009 10:14 AM > To: Law & Religion issues for Law Academics > Subject: RE: Government Religious Displays and Substantive Neutrality > > > > I fully accept Alan's analysis. Very helpful. > > Quoting "Brownstein, Alan" : > >> While I would probably come out in the same place as Doug does on >> many of these issues, I might be more explicit than he is in arguing >> that substantive neutrality refers to both liberty and equality >> values. Liberty standing alone can't handle the job. If government >> gives modest financial incentives to one faith and not another (three >> pence in aid), the impact on religious liberty and the incentives >> such spending discrimination creates will be minimal or nonexistent. >> Even minor regulatory discrimination is unlikely to persuade many >> individuals to change their religious beliefs and practices. But >> surely a one dollar tax credit to Christians is unconstitutional, >> notwithstanding its minimalist impact on religious liberty. >> >> It is not that hard to conceptualize a preferentialist religious >> display in a public park in the same way. If the government decided >> that one quarter of an acre of a one hundred acre park is reserved >> solely for the expressive use of a particular religious faith, I >> presume that would be unconstitutional. If the government reserves >> one quarter acre for the expressive use of a particular religious >> faith, but insists that the message must be communicated with a >> permanent structure, I would think that is also unconstitutional. How >> different is it if the government
RE: Government Religious Displays and Substantive Neutrality
I think Mark's post is helpful in returning to the original source of this thread, but my post was not intended to suggest free speech analogies. As Mark notes, there may be interesting free speech questions that are implicated by my examples, but my focus is one the Establishment Clause not the Free Speech Clause. Just as the Summum case was litigated on free speech grounds and did not directly address Establishment Clause issues, we can imagine a case that is litigated on Establishment Clause grounds and ignores the free speech issue that may be present. When I wrote that " From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, March 31, 2009 11:27 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality Given Doug's criticism of my earlier post (which undoubtedly means I did not give the matter enough thought before posting and need to clarify or revise my post), I'm reluctant to reengage so soon, but it is worth noting that parts of Alan's analysis would apply even with respect to nonreligious speech (e.g., Rick's examples of secular messages that are offensive to some). If the govt decided to allow one group with a focus on a particular subject (e.g., global warming) and one viewpoint (law must severely limit carbon dioxide emissions) exclusive use of a portion of a park for expressive purposes--while still maintaining its character as a part of a public park--I think there would be a free speech violation, with speech in a traditional public forum being regulated on the basis of content and even viewpoint. If Alan's analogy holds, then allowing adoption of a secular message on a govt monument would also violate the First Am. I suppose that would make war memorials that honor the fallen violative of the First Am (at least absent an equal opportunity for placement of dissenting monuments). I presume that means something does not work with the analogy. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 31, 2009 10:14 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I fully accept Alan's analysis. Very helpful. Quoting "Brownstein, Alan" : > While I would probably come out in the same place as Doug does on > many of these issues, I might be more explicit than he is in arguing > that substantive neutrality refers to both liberty and equality > values. Liberty standing alone can't handle the job. If government > gives modest financial incentives to one faith and not another (three > pence in aid), the impact on religious liberty and the incentives > such spending discrimination creates will be minimal or nonexistent. > Even minor regulatory discrimination is unlikely to persuade many > individuals to change their religious beliefs and practices. But > surely a one dollar tax credit to Christians is unconstitutional, > notwithstanding its minimalist impact on religious liberty. > > It is not that hard to conceptualize a preferentialist religious > display in a public park in the same way. If the government decided > that one quarter of an acre of a one hundred acre park is reserved > solely for the expressive use of a particular religious faith, I > presume that would be unconstitutional. If the government reserves > one quarter acre for the expressive use of a particular religious > faith, but insists that the message must be communicated with a > permanent structure, I would think that is also unconstitutional. How > different is it if the government states that it will accept the > permanent structure as a gift and place it on that same quarter acre > plot? In all three cases, government property is being used on a > discriminatory basis to communicate the message of one religious > community and not that of others. The line between giving a > religious group funds to communicate the government's religious > message that coincides with the group's own beliefs, and giving a > religious group public land to express a religious message that > coincides with the government's religious commitments is thin. > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas > Laycock > Sent: Monday, March 30, 2009 7:53 PM > To: religionlaw@lists.ucla.edu > Subject: Fwd: Government Religious Displays and Substantive Neutrality > > > A friend on the list posed the following question to me. Since he > didn't send the query to the list,
Re: Fwd: Government Religious Displays and Substantive Neutrality
I think that some of what Rick objects to can be fixed, and some of it -- maybe the core of it -- cannot. Of course we could exempt religious objectors from courses with religiously objectionable content. Cases like Mozert and Hot, Sexy, and Safer, which refuse even to entertain exemption requests, are outrageous. We could also protect religious dissent from government viewpoints; cases allowing schools to suppress dissent on gay rights issues are also outrageous. But the core of what Rick complains about is that government can promote viewpoints on political issues, even if the government's position has implications for some religions, but government cannot promote viewpoints on religious issues. This most commonly arises with respect to moral issues, although evolution presents the same problem, and in principle it could arise anywhere. Both church and state speak to moral issues. The churches promote their view of moral obligation, and the state decides what moral values are sufficiently important to write into law. Often there is substantial overlap; this was the kernal of truth in the argument that the Ten Commandments overlap with secular law. Sometimes there is disagreement. When liberal churches teach nondiscrimination and conservative churches teach sex only within marriage between one man and one woman, the state will be disagreeing with some religious body no matter what it does. There can be many religious views of sexual morality, but only one view can be written into law, and we choose the one to be written into law through the political process. Government is a central part of that process; it can try to enforce laws once enacted, and persuade people to comply voluntarily; it can try to lead public opinion to get laws enacted. And so there will be displays about polticial positions that incumbent administrations consider important, or likely to attract votes. So the gay pride display may be offensive, but it is not gratuitous. It is part of the political process. There is no similar need to choose a single religous view, on gay rights or anything else, and for the government to choose one religious view is not part of any legitimate political process unless we want to start voting on religion. It is one thing for government to say I must comply with laws I don't like, and even that I should learn to like them. It is a very different thing for government to say, or imply, that I will be eternally punished if I don't accept its viewpoint. Quoting Rick Duncan : > 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 > > > > > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713___ 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
RE: Government Religious Displays and Substantive Neutrality
Given Doug's criticism of my earlier post (which undoubtedly means I did not give the matter enough thought before posting and need to clarify or revise my post), I'm reluctant to reengage so soon, but it is worth noting that parts of Alan's analysis would apply even with respect to nonreligious speech (e.g., Rick's examples of secular messages that are offensive to some). If the govt decided to allow one group with a focus on a particular subject (e.g., global warming) and one viewpoint (law must severely limit carbon dioxide emissions) exclusive use of a portion of a park for expressive purposes--while still maintaining its character as a part of a public park--I think there would be a free speech violation, with speech in a traditional public forum being regulated on the basis of content and even viewpoint. If Alan's analogy holds, then allowing adoption of a secular message on a govt monument would also violate the First Am. I suppose that would make war memorials that honor the fallen violative of the First Am (at least absent an equal opportunity for placement of dissenting monuments). I presume that means something does not work with the analogy. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 31, 2009 10:14 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I fully accept Alan's analysis. Very helpful. Quoting "Brownstein, Alan" : > While I would probably come out in the same place as Doug does on > many of these issues, I might be more explicit than he is in arguing > that substantive neutrality refers to both liberty and equality > values. Liberty standing alone can't handle the job. If government > gives modest financial incentives to one faith and not another (three > pence in aid), the impact on religious liberty and the incentives > such spending discrimination creates will be minimal or nonexistent. > Even minor regulatory discrimination is unlikely to persuade many > individuals to change their religious beliefs and practices. But > surely a one dollar tax credit to Christians is unconstitutional, > notwithstanding its minimalist impact on religious liberty. > > It is not that hard to conceptualize a preferentialist religious > display in a public park in the same way. If the government decided > that one quarter of an acre of a one hundred acre park is reserved > solely for the expressive use of a particular religious faith, I > presume that would be unconstitutional. If the government reserves > one quarter acre for the expressive use of a particular religious > faith, but insists that the message must be communicated with a > permanent structure, I would think that is also unconstitutional. How > different is it if the government states that it will accept the > permanent structure as a gift and place it on that same quarter acre > plot? In all three cases, government property is being used on a > discriminatory basis to communicate the message of one religious > community and not that of others. The line between giving a > religious group funds to communicate the government's religious > message that coincides with the group's own beliefs, and giving a > religious group public land to express a religious message that > coincides with the government's religious commitments is thin. > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas > Laycock > Sent: Monday, March 30, 2009 7:53 PM > To: religionlaw@lists.ucla.edu > Subject: Fwd: Government Religious Displays and Substantive Neutrality > > > A friend on the list posed the following question to me. Since he > didn't send the query to the list, I have deleted his name. If he > thinks he's got me after my answer, he can take credit on his own > initiative.. > >> Might you be willing to offer your reaction to the following line of >> argument: > >> (1) Suppose that a government erects a nativity scene, a Ten >> Commandments display, or a cross. > >> (2) It is pretty clear that this is *formally* non-neutral. > >> (3) The display, however, is *substantively* neutral -- in the sense >> that the display does not affect anyone's religious choices. > >> (4) Since the Establishment Clause is the constitutional mechanism >> for achieving substantive government neutrality towards religion, >> the display does not violate the Establishment Clause -- despite its >> formal non-neutrality.. >
RE: Government Religious Displays and Substantive Neutrality
I fully accept Alan's analysis. Very helpful. Quoting "Brownstein, Alan" : > While I would probably come out in the same place as Doug does on > many of these issues, I might be more explicit than he is in arguing > that substantive neutrality refers to both liberty and equality > values. Liberty standing alone can't handle the job. If government > gives modest financial incentives to one faith and not another (three > pence in aid), the impact on religious liberty and the incentives > such spending discrimination creates will be minimal or nonexistent. > Even minor regulatory discrimination is unlikely to persuade many > individuals to change their religious beliefs and practices. But > surely a one dollar tax credit to Christians is unconstitutional, > notwithstanding its minimalist impact on religious liberty. > > It is not that hard to conceptualize a preferentialist religious > display in a public park in the same way. If the government decided > that one quarter of an acre of a one hundred acre park is reserved > solely for the expressive use of a particular religious faith, I > presume that would be unconstitutional. If the government reserves > one quarter acre for the expressive use of a particular religious > faith, but insists that the message must be communicated with a > permanent structure, I would think that is also unconstitutional. How > different is it if the government states that it will accept the > permanent structure as a gift and place it on that same quarter acre > plot? In all three cases, government property is being used on a > discriminatory basis to communicate the message of one religious > community and not that of others. The line between giving a > religious group funds to communicate the government's religious > message that coincides with the group's own beliefs, and giving a > religious group public land to express a religious message that > coincides with the government's religious commitments is thin. > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas > Laycock > Sent: Monday, March 30, 2009 7:53 PM > To: religionlaw@lists.ucla.edu > Subject: Fwd: Government Religious Displays and Substantive Neutrality > > > A friend on the list posed the following question to me. Since he > didn't send the query to the list, I have deleted his name. If he > thinks he's got me after my answer, he can take credit on his own > initiative.. > >> Might you be willing to offer your reaction to the following line of >> argument: > >> (1) Suppose that a government erects a nativity scene, a Ten >> Commandments display, or a cross. > >> (2) It is pretty clear that this is *formally* non-neutral. > >> (3) The display, however, is *substantively* neutral -- in the sense >> that the display does not affect anyone's religious choices. > >> (4) Since the Establishment Clause is the constitutional mechanism >> for achieving substantive government neutrality towards religion, >> the display does not violate the Establishment Clause -- despite its >> formal non-neutrality.. > > Actually, I don't think that either 2) or 3) is clear. Formal > neutrality becomes incoherent in the case of government speech. > Formal neutrality is defined as the absence of religious categories. > But a rule that government can take no positions when it discusses > religion -- that it must be either silent or scrupulously neutral in > what it says -- makes a very special category of religion. On every > other topic, government endorses or opposes as it chooses. So while > endorsing religion certainly seems like a departure from neutrality, > it doesn't easily fit into the definition of formal neutrality. > > And if you try to put religion into one of the existing categories, > which one? The category of all the things government endorses? All > the things it opposes or denounces? All the things it doesn't care > about and expresses no opinion on? It's really not clear what > formally neutral would mean here.. > > I do think government endorsements depart from substantive > neutrality, because they attempt to persuade or encourage people to > adopt the government's religious views. But as my questioner notes, > these government efforts are highly unlikely to be very effective. > Sometimes I have defined substantive neutrality as requiring neutral > incentives; sometimes I have defined it as government neither > encouraging or discouraging religious belief or practice. I had not > focused on the difference b
RE: Government Religious Displays and Substantive Neutrality
While I would probably come out in the same place as Doug does on many of these issues, I might be more explicit than he is in arguing that substantive neutrality refers to both liberty and equality values. Liberty standing alone can't handle the job. If government gives modest financial incentives to one faith and not another (three pence in aid), the impact on religious liberty and the incentives such spending discrimination creates will be minimal or nonexistent. Even minor regulatory discrimination is unlikely to persuade many individuals to change their religious beliefs and practices. But surely a one dollar tax credit to Christians is unconstitutional, notwithstanding its minimalist impact on religious liberty. It is not that hard to conceptualize a preferentialist religious display in a public park in the same way. If the government decided that one quarter of an acre of a one hundred acre park is reserved solely for the expressive use of a particular religious faith, I presume that would be unconstitutional. If the government reserves one quarter acre for the expressive use of a particular religious faith, but insists that the message must be communicated with a permanent structure, I would think that is also unconstitutional. How different is it if the government states that it will accept the permanent structure as a gift and place it on that same quarter acre plot? In all three cases, government property is being used on a discriminatory basis to communicate the message of one religious community and not that of others. The line between giving a religious group funds to communicate the government's religious message that coincides with the group's own beliefs, and giving a religious group public land to express a religious message that coincides with the government's religious commitments is thin. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, March 30, 2009 7:53 PM To: religionlaw@lists.ucla.edu Subject: Fwd: Government Religious Displays and Substantive Neutrality A friend on the list posed the following question to me. Since he didn't send the query to the list, I have deleted his name. If he thinks he's got me after my answer, he can take credit on his own initiative.. > Might you be willing to offer your reaction to the following line of argument: > (1) Suppose that a government erects a nativity scene, a Ten Commandments > display, or a cross. > (2) It is pretty clear that this is *formally* non-neutral. > (3) The display, however, is *substantively* neutral -- in the sense that the > display does not affect anyone's religious choices. > (4) Since the Establishment Clause is the constitutional mechanism for > achieving substantive government neutrality towards religion, the display > does not violate the Establishment Clause -- despite its formal > non-neutrality. Actually, I don't think that either 2) or 3) is clear. Formal neutrality becomes incoherent in the case of government speech. Formal neutrality is defined as the absence of religious categories. But a rule that government can take no positions when it discusses religion -- that it must be either silent or scrupulously neutral in what it says -- makes a very special category of religion. On every other topic, government endorses or opposes as it chooses. So while endorsing religion certainly seems like a departure from neutrality, it doesn't easily fit into the definition of formal neutrality. And if you try to put religion into one of the existing categories, which one? The category of all the things government endorses? All the things it opposes or denounces? All the things it doesn't care about and expresses no opinion on? It's really not clear what formally neutral would mean here. I do think government endorsements depart from substantive neutrality, because they attempt to persuade or encourage people to adopt the government's religious views. But as my questioner notes, these government efforts are highly unlikely to be very effective. Sometimes I have defined substantive neutrality as requiring neutral incentives; sometimes I have defined it as government neither encouraging or discouraging religious belief or practice. I had not focused on the difference between these two formulations until I got this question, but government speech encouraging religion is a case where the encouragement is blatant but the effects on incentives may be quite small. I don't think the effect on incentives is zero. Government is a large and pervasive presence, and at the margin, its religious speech surely matters. The kinds of government speech we are talking about is not going to convert Jews or Muslims to Christianity. But government religious speech necessarily
RE: Government Religious Displays and Substantive Neutrality
I'm late to this discussion but Rick is on to something that we have known for a long time. The modern state cannot act without conferring religious insult. A common move to avoid the implications of that is to announce, in Steven Jamar's rule, some supposed difference between the religious and the secular - generally turning on whether one uses expressly religious language or makes claims about extra temporal matters. But the idea that these matters are "religious" and everything else is secular is itself rooted in a certain view of religion and does not reflect the way many citizens view the role of faith in everyday life. As a result, the government can convey messages that are completely inconsistent with a a religious citizens most fundamental beliefs or can involve itself in events or subjects in a way that the exclusion of religion itself conveys insult. All of this is problematic because of the ambition with which we have sought to protect nonbelievers or historic religious minorities. Chase Harper can be told that religious beliefs that he claims are rooted in a sacred and infallible text are wrong (I understand that this in not precisely the claim that he made) while Deborah Weisman can insist on not having to sit silently while someone says a brief nondenominational prayer. I don't think that both Chase and Deborah can be protected from religious insult. I do think that it makes little sense - and is certainly not substantively neutral - to distinguish between comparable insults on the basis of a division between the religious and secular that is not itself neutral as to the views and choices of citizens on religious matters. This does not mean that anything goes. But, as I argue in a forthcoming piece in the William & Mary Bill of Rights Journal, we need to recalibrate the nature of the injury that raises establishment clause concerns. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715 Blogs: www.sharkandshepherd.blogspot.com http://law.marquette.edu/facultyblog/ You can access my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar [stevenja...@gmail.com] Sent: Tuesday, March 31, 2009 10:17 AM To: Law & Religion issues for Law Academics Subject: Re: Government Religious Displays and Substantive Neutrality In other words, Rick wants us to ignore the distinction between religion and secular and to repeal the establishment clause, leaving only the free exercise clause. Let the government make its religious speech, just like any other speech. Let government push any religious point of view as if it were any other point of view, such as ones about democracy and the environment. An establishment prohibition is not necessary for liberty in general and religious liberty in general -- many countries in the world establish religion and yet grant broad liberty in the form of speech and free exercise. But it is nonetheless a useful and generally good distinction. Rick doesn't like it even though the Constitution mandates that we make this distinction. But that is hardly a Constitutional argument to treat religion just like any thing else. Steve -- Steven D. Jamar vox: 410-992-9664 cell: 410-499-1536 mailto:stevenja...@gmail.com http://iipsj.com/SDJ/ On Mar 31, 2009, at 11:02 AM, Rick Duncan wrote: 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&#
Re: Government Religious Displays and Substantive Neutrality
In other words, Rick wants us to ignore the distinction between religion and secular and to repeal the establishment clause, leaving only the free exercise clause. Let the government make its religious speech, just like any other speech. Let government push any religious point of view as if it were any other point of view, such as ones about democracy and the environment. An establishment prohibition is not necessary for liberty in general and religious liberty in general -- many countries in the world establish religion and yet grant broad liberty in the form of speech and free exercise. But it is nonetheless a useful and generally good distinction. Rick doesn't like it even though the Constitution mandates that we make this distinction. But that is hardly a Constitutional argument to treat religion just like any thing else. Steve -- Steven D. Jamar vox: 410-992-9664 cell: 410-499-1536 mailto:stevenja...@gmail.com http://iipsj.com/SDJ/ On Mar 31, 2009, at 11:02 AM, Rick Duncan wrote: 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 ___ 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.
Re: Fwd: Government Religious Displays and Substantive Neutrality
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 ___ 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.
Fwd: Government Religious Displays and Substantive Neutrality
A friend on the list posed the following question to me. Since he didn't send the query to the list, I have deleted his name. If he thinks he's got me after my answer, he can take credit on his own initiative.. > Might you be willing to offer your reaction to the following line of argument: > (1) Suppose that a government erects a nativity scene, a Ten Commandments > display, or a cross. > (2) It is pretty clear that this is *formally* non-neutral. > (3) The display, however, is *substantively* neutral -- in the sense that the > display does not affect anyone's religious choices. > (4) Since the Establishment Clause is the constitutional mechanism for > achieving substantive government neutrality towards religion, the display > does not violate the Establishment Clause -- despite its formal > non-neutrality. Actually, I don't think that either 2) or 3) is clear. Formal neutrality becomes incoherent in the case of government speech. Formal neutrality is defined as the absence of religious categories. But a rule that government can take no positions when it discusses religion -- that it must be either silent or scrupulously neutral in what it says -- makes a very special category of religion. On every other topic, government endorses or opposes as it chooses. So while endorsing religion certainly seems like a departure from neutrality, it doesn't easily fit into the definition of formal neutrality. And if you try to put religion into one of the existing categories, which one? The category of all the things government endorses? All the things it opposes or denounces? All the things it doesn't care about and expresses no opinion on? It's really not clear what formally neutral would mean here. I do think government endorsements depart from substantive neutrality, because they attempt to persuade or encourage people to adopt the government's religious views. But as my questioner notes, these government efforts are highly unlikely to be very effective. Sometimes I have defined substantive neutrality as requiring neutral incentives; sometimes I have defined it as government neither encouraging or discouraging religious belief or practice. I had not focused on the difference between these two formulations until I got this question, but government speech encouraging religion is a case where the encouragement is blatant but the effects on incentives may be quite small. I don't think the effect on incentives is zero. Government is a large and pervasive presence, and at the margin, its religious speech surely matters. The kinds of government speech we are talking about is not going to convert Jews or Muslims to Christianity. But government religious speech necessarily comes in some particular form. It models forms of prayer, forms of observing Christmas, one translation of the Ten Commandments, etc. For the not-very-committed, these government models may well have influence. We are engaged in a cultural battle over the proper celebration of Christmas -- is it mostly about the Incarnation of God in human form, or mostly about retail sales, acquiring stuff, and a lot of parties? The Supreme Court says government can come down on the sales-stuff-parties side, or it can straddle that divide, but it can't come down just on the Incarnation side. Whatever the Supreme Court said, government could not celebrate Christmas (beyond closing its offices and letting the private sector conduct the observances) without choosing a position in that battle. And the cumulative effect of thousands of government Christmas displays may push the battle over Christmas one direction or the other. 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 also freely admit -- admitted in print years ago -- that government religious displays are the thing in its least burdensome form. If I had to give up one provision of the Bill of Rights, this would be the one I would choose. I don't think the harms caused by these displays are trivial, either to the dissenters or to the believers in the faith that is so often misused or reduced to a least common denominator. But I do agree that the harms here are less than the harms of coercing people to violate their conscience or suppress their speech. Finally, I understand that silence may not be perf
