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Monday, March 30, 2009

Garnett on "Our Free Speech Fortress"

Our own Rick Garnett has an op-ed in USA Today, um, today, discussing the government's role in religious expression, in light of the recent Summum opinion.  Rick argues that the government regularly is involved as a speaker within the walls of our "free speech fortress," and that disputes over things like the public display of the 10 Commanemdments may distract us from more serious questions of religious liberty.  Ira Lupu, among others, has remarked on the degree to which religious symbolism cases have taken primacy in Establishment Clause litigation over religious funding cases, and supplies various reasons why this may be.  It's a fine article; I don't have the cite off hand, but I believe it was in William & Mary some years back.  Rick's is a brief and commendable contribution to this conversation.  Rick writes that while we must be sensitive to and cautious about the role of government in religious speech, 

At the same time, we should, in these and similar cases, keep our eye on the religious-freedom ball. The separation of church and state, correctly understood, is a powerful, crucial protection for genuine diversity and liberty of religious conscience. Its proper goal is not to put religion in its place but to keep the state in its place. It is not, however, meaningfully threatened by a Ten Commandments monument in a town park or a land swap involving a cross in the desert. The court should, in a predictable and principled way, enforce the establishment clause by preventing attempts by government to exercise religious authority or to interfere with religious communities' self-government, and leave the monitoring of monuments to the good sense of citizens and to the give-and-take of ordinary politics.

I have a couple of responses to this.  If religious liberty is not meaningfully threatened by, say, Ten Commandments displays, then presumably neither is it meaningfully advanced; of course, as some have argued, religion may also be positively harmed by being watered down and/or made the subject of government speech.  If Rick is right, then the good sense of citizens may also at times include the choice not to present such displays, or only to do so on an even-handed basis.  Also, I'm not sure how to draw the line between the first clause of Rick's last sentence -- government must not exercise religious authority -- and the second clause, in which he says that monuments must be left to ordinary politics.  Why isn't the latter subsumed under the former rule?  

I suspect my default rule would be closer to excluding than to including, although perhaps not in all circumstances.  But I agree with Rick that government is already a speaker within our free speech fortress and that this fact needs greater attention; and I agree that not all the Establishment Clause cases that generate light necessarily generate heat.  Anyways, read it all!

Posted by Paul Horwitz on March 30, 2009 at 10:25 AM in Paul Horwitz | Permalink


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What about "In God We Trust" on our money? There are several questions here. 1st...do the people that stamp the money have such little faith in it that that they call on God to sustain it? If so, what if God decides he no longer likes what has been done (is being done) to our money? Will he make his feelings known to us? Perhaps by allowing it to become completely debased? If that happens are we then justified in no longer trusting in God?

(hopefully) deep thoughts from a hard money advocate who happens to think God is very displeased with our monetary system. Dear God, if you decide to gouge our current system and help us to return to honest constitutional money, there will be none more pleased and none more willing to proclaim that God is great and and that no believer should ever lose their trust in you.

Posted by: matt butler | Apr 16, 2009 12:12:52 AM

Great piece today, Rick. Certainly, it's worth pointing out that, despite the interest groups' rhetoric, these cases involving longstanding monuments are not at the top of the hierarchy of religious liberty issues. I was a bit troubled by the last line also, though, and would prefer to draw the line where a monument suggests to most that the majority celebrates religion, or a particular religious view. Citizens' "good sense" often incorporates a myopic perspective on what "everybody" thinks. Op-ed pieces are so brief, though, there may be no real difference of opinion. (I had a small piece on Summum in the National Law Journal this week, and already wish I could explain more of what I meant....)

Posted by: Mary Jean Dolan | Mar 31, 2009 5:46:43 AM

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