You don't silence the Nativity scene. You force the private sector to put it
up on private land or in a public forum.
Quoting Rick Duncan :
> I think Eugene makes a great point about the divisiveness caused by
> the endorsement test.
>
> When you enjoin a governmental religious display (suc
It seems to me that anyone who supports the constitutional legitimacy of
"prophylactic rules" should find the "actual use" of religion highly relevant.
Better to suppress a future Lincoln than to give a green light to
faux-religious politicos.
Sandy
From: reli
I think that Eugene's mention of the fact that the government's accepted use of
religion occurred at a "pretty ecumenical level" has to carry a lot of weight
here. It's not that there weren't countervailing cultural, political, and legal
aspects of our history. Certainly, contempt for Native Ame
Re: Madison's Remonstrance
Isn't that the distinction?
Let's go back to the hypothetical from earlier, the one about the "anti
homosexual" sign versus the "Christians welcome" sign. I thought that was a
strong hypothetical that really hit to the heart of the issue. Why can the
government do A b
Perhaps it would be useful to quote the following from Madison's Memorial and
Remonstrance (a document that some would claim has constitutional significance,
though of course that is contested):
"5. Because the Bill implies either that the Civil Magistrate is a competent
Judge of Religious Trut
Professor Volokh's empirical statement might be true. But what if it is
also true about coercion? Perhaps division might be reduced if
government could coerce religiously. I think the Innerchange litigation
was far more controversial than the program; maybe prisons should be
able to freely give
Since this thread allegedly began with a focus on the Summum case, it might be
helpful to focus the discussion on the core Establishment Clause issue raised
by the case -- that of denominational preferentialism.
In that context, I find arguments about a heckler's veto to be unpersuasive. If
a t
Whether or not that distinction is sound as an empirical matter –
and, given the tradition of using religious invocations for ceremonial
purposes, for national mourning, and other similar reasons, it’s hard to see
all or most political use of religious talk as “crassly instrumental [
May I respectfully suggest that one difference between Lincoln and perhaps) all
of his successors is that he was a profoundly serious man who was not using
religion for crassly instrumental low-political purposes.
Sandy
From: religionlaw-boun...@lists.ucla.edu
I think Mark and Randy both make good points, so let me pose a couple of
hypotheticals to explore the potential range of the Summum opinion.
1. Town X routinely refuses to allow private parades through its central
business district because of congestion and safety concerns and because once it
It seems to me that no endorsement theory can be considered credible if it
cannot be squared with the powerful invocation of religious ideas in Lincoln's
Second Inaugural Address. Somehow it seems wrong to describe what Lincoln did
as "using" religion. Perhaps it would be better to say that the
I can see that Rick just doesn't accept the idea that religion is
constitutionally distinctive for purposes of non-coercive government support.
And, without an Establishment Clause, I suppose it's not. So, in some towns,
we'll get crosses on City Hall and "Christians welcome" signs. (Recall t
Chip Lupu writes:
> Second, our government is supposed to
> be "under God," not one with God, or identified with a particular
conception of God.
> Totalitarian states co-opt God, and loyalty to God, for their own
purposes; the
> Establishment Clause forbids that in the U.S.
I wonder where
Well ... that assumes that (1) the acceptance of the monument was coupled with
a decision by the city to commit the "monument" space in the park to a
government expressive them, and (2) the Court's rationale (apart from its
declaration that this applies only to monuments) can be so limited.
Ran
I think Eugene makes a great point about the divisiveness caused by the
endorsement test.
When you enjoin a governmental religious display (such as the Nativity scene I
keep "harping" about), you don't merely silence the govt. You also impose
silence on the willing audience (private citizens wh
Chip Lupu writes:
> Rick likes to call the restriction on government religious speech a
"heckler's veto,"
> because that's a pejorative. And I must say that the "endorsement"
approach, and
> a focus on "offense" taken by viewers, feeds that way of framing the
issue. But
> there are far more powe
I told my seminar group Tuesday that the work of the Supreme Court on
Establishment Clause issues is comparable to the work of basketball officials
in distinguishing between a "charge" and a "block" -- it is whatever the
officials say it is. I confess I've been watching much basketball lately.
Chip asks me:
"Rick keeps harping on "liberty" and the problems of incorporating the
Establishment Clause; those problems are well-known. Suppose the
Clause were disincorporated. Does Rick see any constitutional problem
with a city that puts a permanent cross on City Hall and a sign on the
lawn
Rick likes to call the restriction on government religious speech a "heckler's
veto," because that's a pejorative. And I must say that the "endorsement"
approach, and a focus on "offense" taken by viewers, feeds that way of framing
the issue. But there are far more powerful and persuasive argu
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