Neutrality and the Constitution
One more quick thought, re: the Ten Commandments.
What the Court doesn’t seem to get is that there is no possible neutrality between religion and non-religion. As Stanley Fish once said, “every position borrows it’s intelligibility from that which it would be distinct”. To understand why this is so, imagine two identically situated government actors:
“A” (who happens to be an atheist) finds inspiration and moral guidance from the life of Martin Luther King, Jr. As a leader in his community, then, A wants to encourage his community to follow King’s example and promote racial harmony. So he petitions the government for a monument to King, perhaps with an inscription providing a few inspirational quotes. Because A’s local government also believes in King’s virtues, they build the monument. The Supreme Court declares this a victory for democracy.
“B” (who happens to be an orthodox Jew) finds inspiration and moral guidance in the life of Moses. As a leader in his community, then, B wants to encourage his community to follow Moses’s example and promote Moses’s humility, conviction (Moses stood up for what he believed against an all-powerful king) and faith. So he petitions the government for a monument to Moses, perhaps with an inscription containing a few of Moses’s teachings, taken from the Torah. Because B’s local government also believes in Moses’s virtues, they build the monument. But the Supreme Court strikes it down, as a violation of the Establishment Clause.
What was the difference between A and B? They had the same purpose (the public affirmation of their most deeply held values and beliefs, embodied in a single individual). They both took the same action. But B violated the Establishment Clause, while A did not. Why? Just because B said the word “God”? Is that really neutrality between religion and non-religion?
As the law currently stands, only agnostics and unitarians can feel fully legally comfortable in expressing their most deeply held values. The message is clear: 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.
UPDATE: There is one way that we might achieve a degree of neutrality, in principle if not in substance. We might permit all people, regardless of religion or lack thereof, to freely express their views in the public square. In practice, this would take power away from the minority views in a community and give it to the majority views in that community. But is that really so bad?
First, note that this does not always (or even mostly) result in a public expression of Christianity. Try getting a monument to the Ten Commandments erected in Boston or San Fransisco, for example. Different communities endorse different visions of religion and of the public good. Why not permit that? Is an atheist in Boston really offended by a display in Kentucky?
Second, even considering the minority view within a given community, who is really harmed by such a mild and noncoercive expression of the majority position? True, a few people will always be offended by the necessity of having to live in a community containing people and beliefs that they dislike, but I suggest that such people are analogous to the “super sensitive plaintiff” in torts. They’re harmed, and we’re sorry about that, but we can’t possibly cater to every single person’s unique sensitivities. As long as the expression is non-coercive, is it really unreasonable to ask for tolerance?
In modern times, then, the free exercise clause of the First Amendment has fallen into disfavor, practically gutted and swallowed up by the establishment clause and the free speech guarantee. This is one sided. Government officials don’t set aside their religious beliefs when they work for the government, and a community of mostly religious people doesn’t become instantly secular when it gathers in a town hall. To pretend otherwise is naive at best and dishonest at worst. So we should at least be honest with ourselves, allowing religious people and non-religious people alike the right to freely express their beliefs so long as such expression doesn’t actually harm or coerce others. The only alternative is to read the religion clauses of the First Amendment entirely out of the Constitution, and to admit with France that government must always be secular and atheistic, and that religious people and religious beliefs are simply not welcome.
And, most of all, we should stop pretending that neutrality is possible. It isn’t. The Courts must either take a side (and prohibit one or more voices from the public square, as they seem to be doing) or else they must permit all voices to be heard, accepting as a necessary consequence that the voice of the majority will inevitably be easily discerned through the background cacophony of pluralism.
UPDATE: Professor Garnett argues, contra Jack Balkin, that the ability or inability of a religious group to the political pull necessary to get their own monuments erected does not, in any way, make them “second class citizens” of the state. This is, of course, an essential element of my argument, but (as I wrote my post before reading Balkin’s) I didn’t bother to spell it out.
“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.”
I don’t see how this follows unless you define the “public square” 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.
By catfish on 06.28.05 2:17 pm
Sorry, that last sentence should have read, “public square.”
By catfish on 06.28.05 2:17 pm
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 “public reason”, 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 “government” 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.
By listless on 06.28.05 2:53 pm
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?
By catfish on 06.28.05 4:16 pm
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.
By listless on 06.29.05 8:44 am
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?
First, note that the religious people in Town C could probably not 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 choose, 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 if they pray it tells them what viewpoints may and, critically, may not 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 “I have a dream” speech, if the meeting is on racial tension) but it tells religious people that they may not, under any circumstances, quote the Bible’s command to “love your neighbor”.
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 ” respect the views of all of it’s citizens”, but the town is mostly religious, then you have traded a policy which “fails to respect” 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 “neutrality”.
Or so it seems to me.
By listless on 06.30.05 4:19 pm