Re: What causes more religious strife: Government bodies posting the Ten Commandments, or courts ordering their removal?
I'm a few hours behind on these postings, so apologies in advance if this point has been made: Suppose that the inquiry into strife is not a direct "touchstone," in the sense that asking whether X causes religious strife is relevant to deciding whether X is constitutional. Rather -- as I think Justice Souter argued in McCreary -- the fact that government interactions (or some other term) with religion historically did cause religious strife should guide our interpretaion of the First Amendment. He then argues that, when one considers the other relevant interpretive material, the best test that emerges is a rule of neutrality, but one could take his first point without thinking that his specific doctrinal conclusion -- drawn, again, from other interpretive material -- is the correct one. begin:vcard n:Tushnet;Mark fn:Mark Tushnet,tushnet tel;fax:202-662-9497 tel;work:202-662-1906 org:Georgetown University Law Center; adr:;;600 New Jersey Ave. NW;Washington;DC;20001; version:2.1 email;internet:[EMAIL PROTECTED] end:vcard ___ 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: What causes more religious strife: Government bodies posting the Ten Commandments, or courts ordering their removal?
I agree with much of what Eugene says, but I think there are polar cases where the strife-inducing or strife-mitigating (over the short range or very long range) effect of a decision comes into play not as the determinative test, but as a consideration in an otherwise difficult or close question. The court perforce does set policy and determine some of the boundaries within which we slug it out. It does not stop the discussions, even heated ones, but it can say some things are out of bounds and it can (and should) at least consider the short and long term effects of its decisions.If the court says a majority religion can lord it over (intentionally vague here) a minority, then the minority can either get used to it or work to change the rule. If the court says the majority religion must leave room for the minority to practice, then this can have another set of effects. If the court says the government is to stay out of support for either majority or minority religions in every possible way, another set of effects results.The effects ought to be considered, even though the court should be careful in doing so because crystal balls do not always show the right path and unintended consequences will follow.SteveOn Aug 4, 2005, at 12:49 PM, Volokh, Eugene wrote: If religious strife is the touchstone, then I wonder: Whatcauses more religious strife: Government bodies posting the TenCommandments, or courts ordering their removal?[snip] -- so as not to repeat what is already available. -- 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 http://www.law.howard.edu/faculty/pages/jamar/ "If a man empties his purse into his head, no man can take it away from him. An investment in knowledge always pays the best interest." Benjamin Franklin ___ 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.
What causes more religious strife: Government bodies posting the Ten Commandments, or courts ordering their removal?
If religious strife is the touchstone, then I wonder: What causes more religious strife: Government bodies posting the Ten Commandments, or courts ordering their removal? Sure, you can say that even the latter strife is "caused" by the initial posting -- but this just further illustrates how vague a term causation can be. (In a sense, even outright religious persecution, in the sense of discrimination or even physical attacks based on a target's religion, is caused both by the persecuter and the victim; but for the victim's holding his religious views, he wouldn't even be attacked.) So if one focuses on immediate cause, then it seems to me that the endorsement test might produce more religious strife than it removes. If one focuses on but-for cause, then religious dissent causes religious strife in the same sense as suppression of the dissent does. And if one tries to find an in-between position, I suspect one will quickly recognize that the "causation" stops being an empirical judgment, and becomes a value judgment: One would be counting what one sees as *improper* causation of religious strife (e.g., government posting of the Ten Commandments empirically causes religious strife, and we count that because the government has no right to do that), but excluding what one sees as *proper* causation of religious strife (e.g., a federal court's order removing the Ten Commandments empirically causes religious strife, but we don't count that because the court is only doing its duty). So lurking behind this supposedly neutral, factual judgment is the very normative question that the "religious strife" was seeking to answer. It follows, it seems to me, that the religious strife inquiry is misguided (as well as involving empirically difficult and hotly contested predictions, a separate matter from the one I identified above). If we think that posting the Ten Commandments is unconstitutional, then removing the Ten Commandments is obligatory regardless of whatever religious strife observers guess that it might cause, and regardless of how little religious strife the original posting might have caused. If we think that the posting is constitutional, then it's permissible regardless of whatever religious strife people conjecture it might cause. Eugene ___ 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.
