June 03, 2005
Establishment Claus: First Passing Post
by Guest Contributor
June 3, 2005 05:15 PM
Hi. I'm a 3L at a major East Coast law school. Like Mike, I've got a poker addiction. (Hi, Mike!)
Orin Kerr offered some thoughts over at Volokh Conspiracy today about the mechanics of group blogs and expectations of style and viewpoint consistency. In that sense, perhaps this trial period is an interesting experiment - a group blawg where few of the blawgers know each other, few have communicated, and the blog is sort of fumbling around for a unifying theme (or themes).
I'll try to contribute to general unity by referencing the same case Sean did yesterday (and Eugene Volokh did the day before), in which Wiccan parents were enjoined against exposing their child to "non-mainstream religious beliefs and rituals." I don't want to focus on the instant case, because my moral intuitions about it are similar to theirs, but to discuss vouchers and recognition of holidays and other areas where government involvement with religion has been found permissible.
I suspect most of us agree that the government shouldn't choose between religions. But (to take perhaps a slightly more extreme example), most of us would also be appalled by our tax dollars financing displays for Satan Day on government property and aiding St. Satan's Parochial School instead of St. Stephen's. But we tend not to be appalled by menorahs, creches, or the Nebraska House Chaplain.
I've got some thoughts on trying to flesh out such a distinction, but I'd be curious to hear what Sean (and any commenters) think. And despite my nom de guerre, I promise not to focus too heavily on church/state issues - you should expect to see a great deal more about international law and criminal law than the Establishment Clause from me. Regardless, I'm looking forwards to blawging here, and hope to get lots of feedback from all of you. Thanks, PG, for the opportunity.
Not to fire back at a fellow guest contributor, but I strongly disagree with Establishment Claus on his "extreme" case. I am fine with allowing religion in public spaces, but one cannot cherrypick what constitutes a religion. While I agree that more people would be appalled at a display for Satan day on public property than a menorah, creche, or what have you, that doesn't make the example extreme. Instead, it points out the hypocrisy of the people involved in the conflict.
The people who argue so strongly for prayer in public schools are often the very same people who try to have Harry Potter removed from the school library due to its Satanic elements.
It is an all or nothing position. You either have no religion in public spaces, a strict separation stance if you will, or an entirely open forum with the same rules applying to all. Unlike some of my civil libertarian brethren, I believe that religion should be given a role in public spaces. But you can't specify the religion.
You're willing to pay taxes to fund a school that teaches Satanism, or fund a statue of the Devil at City Hall? You're a better man than me (or at least more committed to equal treatment of religions). Do Internet churches also deserve equal treatment? Is there any restriction on the principle at all for you?
I'm not sure I believe in God, I certainly don't believe in Satan, why should I draw a distinction between funding one or the other? There are plenty of people who would find funding Wiccanism objectionable. Do you think former Alabama Judge Roy Moore, who fought so hard for the 10 Commandments monument, would have been OK with a statue of God and the Goddess?
We should not be in the position of saying what religions are good and what religions are bad: THAT would most certainly be establishing religion, in this case, religions, in this country and is entirely against the First Amendment. It's not merely a question of equal treatment of ideas, it's also about an equal treatment of ideas--content neutral regulation. Also a clear First Amendment issue.
There is a restriction on the principle, but it isn't based on what the religion preaches--it's a numerical calculation. I haven't decided on a number or, honestly, thought too hard about what it should be, but there would need to be some sort of calculus as to the number of members of the religion.
Hence, the national church of Bob, consisting of Bob, wife, and two children, would not be a religion deserving of equal treatment and I'd be opposed to funding a statute of Bob. On the other hand, an internet church with 30,000 members want to put a creche-type thing or whatever else on the lawn of City Hall? Fine by me.
So it's just numerical? At what point between 4 and 40,000 does the religion deserve public space? Does it matter if Bob and his kids are deeply sincere in their beliefs?
I would make it numerical, yes. Or some balancing test that factors in numbers. It is a better solution than trying to judge religions based on their content,
Keeping in mind that I haven't proposed judging religions based on their content - what sort of balancing test did you have in mind?
I would be willing to weigh sincerity of belief along with a numerical indicator--I haven't decided on an exact test yet.
When you approve of St. Stephen's and not St. Satan's Parochial School, that's a content-based judgment of religions...
Actually, Jed, there are a variety of ways St. Stephen's is more worthy than St. Satan's, among them:
- number of adherents
- policy value of inculcating the values the religion teaches (i.e., don't kill innocent people v. kill innocent people)
- historical importance to development of American law and society (Deism also ranks pretty high up here, but Satanism not so much)
- network and infrastructure of related schools, which means better curricular support, more teachers willing to work there and trained in Catholic school educational philosophies, more community support, et al.
I understand it's tempting to try to defend extreme positions like 'give federal funding to Satanism' as an intellectual exercise. Try to resist it next time.
It's not an intellectual exercise, Establishment Claus. Nor is it necessarily an extreme position. And I mean no disrespect, but the "don't kill innocent people v. kill innocent people" but shows an ignorance of what the Church of Satan stands for.
Victims are killed symbolically, not actually, and ritual killing of people or animals is forbidden.
How will you draw a distinction between, say, the Church of Scientology and the Church of Satan? If Tom Cruise belonged to the Church of Satan, might it be a less extreme example? Heck, the Church of Satan isn't all that different from Wiccanism in some respects, except they embrace revenge instead of the Wiccans' focus on the positive.
Do I advocate for the Church of Satan? No, of course not. Nor do I advocate for Christianity, Paganism, Hinduism, Shintoism, or any other religion. I see no reason why any one of them is more worthy of federal funding than the other.
My suspicion is the reality is a little less sanitized than the description on the Church of Satan's website. Any response to the other three arguments?
That wasn't the Church of Satan's website, that was a third party, neutral website....
But in any case: to address your arguments:
1: Number of adherents. Well heck--here I agree, I did use my "Church of Bob" example, afterall.... It needs to be taken into account as a factor.
2. Policy value of inculcating the values the religion teachers: I don't like this point very much. It comes closer to establishing a religion(s) then I am comfortable with. Now, based on the content of the religion, we are determining what is good or bad--what can or can't be federally funded. Let's call that for what it is: what can and can't be one of the State religions. Sure, it pluralistic, in that there are several State religions to choose from, but they are still established State religions.
Historical importance to development of American law and society. I think this is a conservative argument that is overused and overemphasized. The age of the religion or the framers being of a particular religion doesn't make it any more of valuable to the constitution than any other.
4. Network and infrastracture of related schools: there you have a point. Some religions are clearly better organized, or at the least, more centrally organized then others. I'll grant you this one.
I will agree that number of adherents and existing infrastructure can and should be taken into account, that is, if we are allowing the funding of any religion at all. I strenuously disagree with looking at a "historical value" or "policy value", however. The difference is that the first two are content neutral, the second two are very much not.
You can disagree with looking at the history, but it doesn't have anything to do with content, Jed. If Satanism had been the Framers' religion and numerous framers spoke of how Satanist values informed the Constitution, the argument would be equally valid in favor of emphasizing Satanism over religions with less historical import.
As for the policy issue, I think we have to have some discussion of what content-based discrimination is reasonable. Say Satanism did espouse murder. Would it THEN be content-based discrimination to exclude it from federal funding? What if it practiced child sex rituals? I think the fact that the content violated the law would a permissible basis on which to differentiate. Similarly, I think the fact that a religion teaches "Lie, cheat, and steal" as opposed to "Don't lie, cheat or steal" impacts the policy value of helping its values get a stronger presence in the public sphere.
Many like to talk about the "Framers" as if they were all of one mind. Plenty of framers would have agreed with a strict wall between Church and State.
As for the policy aspects, I seem to recall that it isn't illegal to advocate for something illegal so long as you aren't actually inciting its occurence. NAMBLA for example.
Courts generally view speech-specific content regulation as odious--combine one First Amendment issue, with another (religion), and I think they'd find your approach problematic at best.