Monday, June 27, 2005

Exploring the Coercive Establishment Norm:

More thoughts on the Ten Commandments. I have to admit, my mind isn't fully made up on how to properly apply the Establishment Clause to every detail of government and life. I do believe, as a matter of constitutional principle, government must be neutral between the different sects of all religions, whether orthodox or not, and neutral between religion and non-religion. Justice Scalia disagrees:

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that "'the First Amendment mandates governmental neutrality between. . . religion and nonreligion,'"...Besides appealing to the demonstrably false principlethat the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another . . . . If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists . . . .

The problem for Justice Scalia is that both Jefferson and Madison held that, when respecting religious rights, government must be neutral between all religions and between religion and non-religion, that the rights of conscience apply to in Jefferson's words, "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination." Here is Madison confirming Jefferson's account.

A more apt point might be that government doesn't have to, in every instance, be neutral, but only when some tangible right is on the line. To use a recent example, Bush when he engages in public prayer, and to his credit, attempts to be inclusive, far more so than many of his religious right supporters would be. He's actually included the name "Allah" and claimed that Muslims worship the same God as Christians and Jews. Because he is the President and was speaking in his official capacity, this sent the message to some that our government recognizes that "Allah is the same God as the God of the Bible."

I distinctly remember one fundamentalist think-thank lady from CWFA or FRC objecting to this, claiming that she doesn't pray to Allah and that Allah is not the God of the Bible. In other words, the government through its official act offended her conscience (although Bush was attempting to be neutral between Christianity & Islam; imagine if a government official were to endorse that Islam, not Christianity contains the Truth). But did she suffer any tangible harm?

This is where Thomas and his notion of "coercive establishments" comes in. I think Thomas is wrong in believing that the EC isn't properly incorporated at all; but he states, were it properly incorporated, the EC should prohibit only certain types of establishments which cause tangible harm, or that are "coercive":

Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, our task would be far simpler if we returned to the original meaning of the word "establishment" than it is under the various approaches this Court now uses. The Framers understood an establishment "necessarily [to] involve actual legal coercion." "In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers." And "government practices that have nothing to do with creating or maintaining … coercive state establishments” simply do not "implicate the possible liberty interest of being free from coercive state establishments."

There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

Thomas may be on to something. I'm loathe to endorse, as a matter of constitutional principle, that government actions which do nothing more than offend someone's religious sensibilities, like the mere invocation of some God in which one doesn't believe, should be a federal issue. But on the other hand, when government has a program which gives out funds, offers any kind of tangible protections or privileges, it must do so on an equal and neutral basis.

However, let's explore some of the implications of Thomas's rule. First, what I call the "Newdow trap." I've seen Michael Newdow, in his debates, lay this trap when debating religious opponents, who almost always fall in. He argues, "if 'under God' is fine, then what if some public school wanted 'under no God' or 'under Allah'?" The opponents always balk. They say, "no that's not okay." But in what sense? It's perfectly fair for them to argue, as matter of public policy, I wouldn't support "under no God" or "under Allah"...ok, but what about as a matter of constitutional principle? What if some small socialist controlled town in Vermont, or Muslim controlled school board in Mich. democratically enacted such policies? Should they be struck down on constitutional grounds?

Under the "coercive Establishment Clause" norm, they should be okay, at least constitutionally. Usually the opponents of the "Newdow Trap" attempt to change the debate by arguing that we are a "Christian Nation" or a "Judeo-Christian" nation, that the Judeo-Christian tradition is what establishes liberty in the first place. Two problems with that: First, the history is questionable. Second, it doesn't matter. What is indefensible is to argue that the Christian religions, or "Judeo-Christian" religions are entitled to any more Constitutional protection than the unorthodox religions. In other words, if non-coercive Judeo-Christian Establishments are fine, then so too must be non-coercive unorthodox and atheistic establishments.

So all of the following would be fine as a matter of constitutional principle as non-coercive establishments. The following are all some kind of government proclamations, which cause no tangible harm:

If Utah wants to proclaim itself to be "the Mormon state."

If a Protestant Fundamentalist governor, speaking in his official capacity, were to refer to the Roman Catholic Church as "the Whore of Babylon." Or if Protestant fundamentalist dominated town wants to erect a government billboard declaring the Catholic Church to be "the Whore of Babylon." Remember, as long as they let the Catholics worship as they please, or don't bar them from government "privileges" that other religions can get or tangibly harm them in any way, it's just a billboard, nothing else.

If a socialist town erects a billboard stating, "there is no God."

If a town erects a statute to the God Bael and puts it in the public park.

Remember, all of these things may be bad public policies, but under Thomas's "no coercive Establishments," they are fine constitutionally. As I said, my mind isn't made up.


Jason Kuznicki said...

I'm not sure if you've seen this before, but I've written on the question of God vs Allah in the past:

Jonathan said...


Reread it. Forgot about that one. That one was good.

TP said...

Great post, Jon. I really like your writing on this subject, and I think we have almost exactly the same views (Note: the reason I like your writings is not because they concord with my preferences, per se, but because I like the logic and the sources upon which you base your position).

jpe said...

Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion....

I go back and forth on Scalia - I generally like his federalism and his strong procedural criminal rights jurisprudence, but he can occasionally be enormously annoying. The above totally takes the cake, and is sufficient grounds for sending hate mail to him.

What a dork.

Jonathan said...


Roberto Iza Valdes said...
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