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	<title>Comments on: Neutrality and the Constitution</title>
	<link>http://www.listlesslawyer.com/blog/?p=517</link>
	<description>The only demand I make of my reader is that he should devote his whole life to reading my works. --James Joyce</description>
	<pubDate>Fri, 10 Sep 2010 08:48:55 +0000</pubDate>
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 		<title>Comment on Neutrality and the Constitution by: listless</title>
		<link>http://www.listlesslawyer.com/blog/?p=517#comment-195</link>
		<pubDate>Thu, 30 Jun 2005 21:19:00 +0000</pubDate>
		<guid>http://www.listlesslawyer.com/blog/?p=517#comment-195</guid>
					<description>&lt;i&gt;Suppose you have three towns. Town A begins every city council meeting with a Christian prayer. Town B begins every city council meeting with a moment of silence. Town C begins every city council meeting with a call to order. Town A clearly makes outsiders of non-Christians who might feel unwelcome. Town B accomodates religious people by providing them a space to practice their religion as individuals. Town C makes no particular accomodation for religious people, who are nevertheless free to gather before the meeting officially begins to pray. Which of the three towns best respects the views of all of their citizens?&lt;/i&gt;

First, note that the religious people in Town C could probably &lt;i&gt;not&lt;/i&gt; pray, on their own, before the meeting. That, in itself, might be held to be an establishment of religion. At the very least, the Freedom From Religion Foundation would threaten a lawsuit on the assumption that it would violate the establishment clause, and because a city council probably couldn't pay the legal fees needed to fight such a lawsuit, they would have to cease their prayers. (When I was growing up, my community faced exactly this situation).

More to the point: You've removed one key element from the situation: you've removed the force of law. Your three towns &lt;i&gt;choose&lt;/i&gt;, voluntarily, how they will open their meetings, and in that case I would support any given town's decision. And if someone was offended by prayer, then I would support a decision to refrain from praying. But that is not the situation we are considering. Here is the situation we're really facing, and I contend that this change makes a difference:

Town A tells it's city council that they may pray if they wish, and they may refrain from praying if they wish. Town B tells it's city council that they may pray if they wish, they may refrain from praying if they wish, but &lt;i&gt;if they pray&lt;/i&gt; it tells them what viewpoints may and, critically, &lt;i&gt;may not&lt;/i&gt; be expressed in their prayers. Town C is the most draconian: it tells it's city council that non-religious people may start the meeting any way they wish (perhaps by reading a selection from King's &quot;I have a dream&quot; speech, if the meeting is on racial tension) but it tells religious people that they &lt;i&gt;may not&lt;/i&gt;, under any circumstances, quote the Bible's command to &quot;love your neighbor&quot;. 

Town C has, in essence, issued a gag order to it's city council. Rather than maximizing freedom, this minimizes it. And if the town's goal is to &quot; respect the views of all of it's citizens&quot;, but the town is mostly religious, then you have traded a policy which &quot;fails to respect&quot; the view of a few for a policy which fails to respect the views of many.

In other words, so long as the rule against offending non-religious people is not a guidline of prudence, but is instead a rule of law enforced by the guns of the State if necessary, then it will not be possible to turn viewpoint discrimination (the censoring of certain statements based on the content of their assertions) into &quot;neutrality&quot;.

Or so it seems to me.</description>
		<content:encoded><![CDATA[	<p><i>Suppose you have three towns. Town A begins every city council meeting with a Christian prayer. Town B begins every city council meeting with a moment of silence. Town C begins every city council meeting with a call to order. Town A clearly makes outsiders of non-Christians who might feel unwelcome. Town B accomodates religious people by providing them a space to practice their religion as individuals. Town C makes no particular accomodation for religious people, who are nevertheless free to gather before the meeting officially begins to pray. Which of the three towns best respects the views of all of their citizens?</i></p>
	<p>First, note that the religious people in Town C could probably <i>not</i> pray, on their own, before the meeting. That, in itself, might be held to be an establishment of religion. At the very least, the Freedom From Religion Foundation would threaten a lawsuit on the assumption that it would violate the establishment clause, and because a city council probably couldn&#8217;t pay the legal fees needed to fight such a lawsuit, they would have to cease their prayers. (When I was growing up, my community faced exactly this situation).</p>
	<p>More to the point: You&#8217;ve removed one key element from the situation: you&#8217;ve removed the force of law. Your three towns <i>choose</i>, voluntarily, how they will open their meetings, and in that case I would support any given town&#8217;s decision. And if someone was offended by prayer, then I would support a decision to refrain from praying. But that is not the situation we are considering. Here is the situation we&#8217;re really facing, and I contend that this change makes a difference:</p>
	<p>Town A tells it&#8217;s city council that they may pray if they wish, and they may refrain from praying if they wish. Town B tells it&#8217;s city council that they may pray if they wish, they may refrain from praying if they wish, but <i>if they pray</i> it tells them what viewpoints may and, critically, <i>may not</i> be expressed in their prayers. Town C is the most draconian: it tells it&#8217;s city council that non-religious people may start the meeting any way they wish (perhaps by reading a selection from King&#8217;s &#8220;I have a dream&#8221; speech, if the meeting is on racial tension) but it tells religious people that they <i>may not</i>, under any circumstances, quote the Bible&#8217;s command to &#8220;love your neighbor&#8221;. </p>
	<p>Town C has, in essence, issued a gag order to it&#8217;s city council. Rather than maximizing freedom, this minimizes it. And if the town&#8217;s goal is to &#8221; respect the views of all of it&#8217;s citizens&#8221;, but the town is mostly religious, then you have traded a policy which &#8220;fails to respect&#8221; the view of a few for a policy which fails to respect the views of many.</p>
	<p>In other words, so long as the rule against offending non-religious people is not a guidline of prudence, but is instead a rule of law enforced by the guns of the State if necessary, then it will not be possible to turn viewpoint discrimination (the censoring of certain statements based on the content of their assertions) into &#8220;neutrality&#8221;.</p>
	<p>Or so it seems to me.
</p>
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 		<title>Comment on Neutrality and the Constitution by: listless</title>
		<link>http://www.listlesslawyer.com/blog/?p=517#comment-194</link>
		<pubDate>Wed, 29 Jun 2005 13:44:17 +0000</pubDate>
		<guid>http://www.listlesslawyer.com/blog/?p=517#comment-194</guid>
					<description>Sorry catfish, I forgot about your question until now. Work calls at the moment, but I'll have a response for you tonight. UPDATE: tomorrow. For sure.</description>
		<content:encoded><![CDATA[	<p>Sorry catfish, I forgot about your question until now. Work calls at the moment, but I&#8217;ll have a response for you tonight. UPDATE: tomorrow. For sure.
</p>
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 		<title>Comment on Neutrality and the Constitution by: catfish</title>
		<link>http://www.listlesslawyer.com/blog/?p=517#comment-187</link>
		<pubDate>Tue, 28 Jun 2005 21:16:28 +0000</pubDate>
		<guid>http://www.listlesslawyer.com/blog/?p=517#comment-187</guid>
					<description>Hmm.  That makes a little more sense, although I disagree about local government.  In my experience, people know much less about local government than they do about national government, partly because there are fewer media outlets dedicated to covering its doings.  Consequently, turnout for local elections is usually lower. It is pretty easy for a well organized or well funded minority to take control of many local governments.  In small towns, it is common for a click to run things in their interests.  (This by the way, is why I am aginst the Kelo decision).  Historically, it also seems to me that local and state governments were more willing to violate the rights of minorities.  The most vivid examples are local law enforcement during the Civil Rights Movement.  Thus, I'm a little sceptical about the idea that local government represents the community, unless by community you mean the local elite.

Also, I think that something approaching neutrality is possible in many cases.  Think of this thought experiment:

Suppose you have three towns.  Town A begins every city council meeting with a Christian prayer.  Town B begins every city council meeting with a moment of silence.  Town C begins every city council meeting with a call to order.  Town A clearly makes outsiders of non-Christians who might feel unwelcome.  Town B accomodates religious people by providing them a space to practice their religion as individuals.  Town C makes no particular accomodation for religious people, who are nevertheless free to gather before the meeting officially begins to pray.  Which of the three towns best respects the views of all of their citizens?</description>
		<content:encoded><![CDATA[	<p>Hmm.  That makes a little more sense, although I disagree about local government.  In my experience, people know much less about local government than they do about national government, partly because there are fewer media outlets dedicated to covering its doings.  Consequently, turnout for local elections is usually lower. It is pretty easy for a well organized or well funded minority to take control of many local governments.  In small towns, it is common for a click to run things in their interests.  (This by the way, is why I am aginst the Kelo decision).  Historically, it also seems to me that local and state governments were more willing to violate the rights of minorities.  The most vivid examples are local law enforcement during the Civil Rights Movement.  Thus, I&#8217;m a little sceptical about the idea that local government represents the community, unless by community you mean the local elite.</p>
	<p>Also, I think that something approaching neutrality is possible in many cases.  Think of this thought experiment:</p>
	<p>Suppose you have three towns.  Town A begins every city council meeting with a Christian prayer.  Town B begins every city council meeting with a moment of silence.  Town C begins every city council meeting with a call to order.  Town A clearly makes outsiders of non-Christians who might feel unwelcome.  Town B accomodates religious people by providing them a space to practice their religion as individuals.  Town C makes no particular accomodation for religious people, who are nevertheless free to gather before the meeting officially begins to pray.  Which of the three towns best respects the views of all of their citizens?
</p>
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 		<title>Comment on Neutrality and the Constitution by: listless</title>
		<link>http://www.listlesslawyer.com/blog/?p=517#comment-185</link>
		<pubDate>Tue, 28 Jun 2005 19:53:40 +0000</pubDate>
		<guid>http://www.listlesslawyer.com/blog/?p=517#comment-185</guid>
					<description>You're right, catfish, I was not choosing my words carefully there. What I was trying to evoke was the connection between this decision (the government may not express religious sentiments) and Rawls' conception of &quot;public reason&quot;, where religious reasons are not welcome (I'm oversimplifying a little).

My words also reflect my belief that, as one moves down the hierarchy of government from national to local to sub-local, government begins to look less like the Leviathan and more like a community. A city council is still government, but it has elements of a town hall to it as well; a local school board reflects it's community even more closely. When a city decides to build a monument to Martin Luther King, Jr., is that the act of the authoritarian State or is it an expression of the community? It looks more like an affirmation of community values to me.

If all aspects of the community touched by &quot;government&quot; must always be secular then, in this age of growing government, only the secular and areligious will feel fully comfortable participating in self-governance.

None of that makes my choice of word correct (you are right to point this out). Analytically, my point (like the Establishment clause) applies only to acts of the state.</description>
		<content:encoded><![CDATA[	<p>You&#8217;re right, catfish, I was not choosing my words carefully there. What I was trying to evoke was the connection between this decision (the government may not express religious sentiments) and Rawls&#8217; conception of &#8220;public reason&#8221;, where religious reasons are not welcome (I&#8217;m oversimplifying a little).</p>
	<p>My words also reflect my belief that, as one moves down the hierarchy of government from national to local to sub-local, government begins to look less like the Leviathan and more like a community. A city council is still government, but it has elements of a town hall to it as well; a local school board reflects it&#8217;s community even more closely. When a city decides to build a monument to Martin Luther King, Jr., is that the act of the authoritarian State or is it an expression of the community? It looks more like an affirmation of community values to me.</p>
	<p>If all aspects of the community touched by &#8220;government&#8221; must always be secular then, in this age of growing government, only the secular and areligious will feel fully comfortable participating in self-governance.</p>
	<p>None of that makes my choice of word correct (you are right to point this out). Analytically, my point (like the Establishment clause) applies only to acts of the state.
</p>
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 		<title>Comment on Neutrality and the Constitution by: catfish</title>
		<link>http://www.listlesslawyer.com/blog/?p=517#comment-182</link>
		<pubDate>Tue, 28 Jun 2005 19:17:47 +0000</pubDate>
		<guid>http://www.listlesslawyer.com/blog/?p=517#comment-182</guid>
					<description>Sorry, that last sentence should have read, &quot;public square.&quot;</description>
		<content:encoded><![CDATA[	<p>Sorry, that last sentence should have read, &#8220;public square.&#8221;
</p>
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 		<title>Comment on Neutrality and the Constitution by: catfish</title>
		<link>http://www.listlesslawyer.com/blog/?p=517#comment-181</link>
		<pubDate>Tue, 28 Jun 2005 19:17:04 +0000</pubDate>
		<guid>http://www.listlesslawyer.com/blog/?p=517#comment-181</guid>
					<description>&quot;Anyone who sincerely believes in any vision of God (except the non-committal, pluralist vision that the Supreme Court has endorsed) simply isn’t welcome in the public square.&quot;

I don't see how this follows unless you define the &quot;public square&quot; as official acts of the government like monuments.  This seems a limited definition to me that would exclude all kinds of speech like: political speeches, debates, radio programs, protests, judicial opinions, print and other media, billboards and other advertising, books, state of the union addresses, etc. All of the above things, should, I believe be included in any meaningful definition of the public sphere.  Of course, religious expression is alive and well in all of the above.  

So, I guess I am asking you to define what you mean by public sphere.


</description>
		<content:encoded><![CDATA[	<p>&#8220;Anyone who sincerely believes in any vision of God (except the non-committal, pluralist vision that the Supreme Court has endorsed) simply isn’t welcome in the public square.&#8221;</p>
	<p>I don&#8217;t see how this follows unless you define the &#8220;public square&#8221; as official acts of the government like monuments.  This seems a limited definition to me that would exclude all kinds of speech like: political speeches, debates, radio programs, protests, judicial opinions, print and other media, billboards and other advertising, books, state of the union addresses, etc. All of the above things, should, I believe be included in any meaningful definition of the public sphere.  Of course, religious expression is alive and well in all of the above.  </p>
	<p>So, I guess I am asking you to define what you mean by public sphere.
</p>
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