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Thursday, May 08, 2014
"Religious pluralism, social unity, and the judicial role"
Following up on Paul's posts (here and here and here) and Howard's (here), here is my contribution to the SCOTUSblog symposium on the Town of Greece case. The main point of the post, I suppose, is to express regret (again) about the prominent role played in the dissenting opinions by the "political divisiveness along religious lines" argument. Here is a bit:
[T]he Court’s constitutional charge to “say what the law is” in Establishment Clause cases should not be understood to include addressing and answering what Justice Breyer said was “[t]he question in this case” – namely, whether the town “did too much . . . to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’” Justice Kagan similarly called for sensitivity to religious beliefs’ “ever-present potential to both exclude and divide” and framed the Court’s task in terms of identifying and preventing “religiously based divisiveness.” In so doing, she echoed a recurring theme in Justice Breyer’s writings about the Religion Clauses’ “basic purposes”: “They seek,” he said in his Van Orden v. Perry concurrence, “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike” and – in his Zelman v. Simmons-Harris dissent – to “protect[t] the Nation’s social fabric from religious conflict.” And, in his 2006 book Active Liberty, he argued that judges’ obligation to help “create a framework for democratic government” warranted this social-fabric-management approach to public-religion cases and acknowledged that their duty to police the arena of politics and policy for unsettling threats of faith-related discord could require them to “interpret the [Religion Clauses] more broadly than the Framers might have thought likely.” . . .
It is not clear, though, why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible. . . .
To be clear, I think Paul is right to say that, in some cases, and contrary to the generalized assurances provided by Justice Kennedy, legislative-prayer and similar public-religion cases involve actions and statements that are probably intended to "divide, not to solemnize." Paul also says that "the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents" and I agree here, too (though I do not count myself as a "supporter of legislative prayer"). My claim is a limited one: Although a rule against religious establishments seems to me a good way to avoid "political divisiveness along religious lines," courts should not answer questions about what the Establishment Clause permits or prohibits by asking whehter or not a policy or program is associated with, or is predicted to cause, or is observed to be accompanied by such "divisiveness."