Honorific Resolutions (and the Establishment Clause)

Via the Volokh Conspiracy, I see this LA Times story reporting that the incoming House Republican leadership is considering eliminating or scaling back on honorific resolutions without legal effect.  Says Rep. Eric Cantor of the leadership team in the story, "I do not suspect that Jefferson or Madison ever envisioned Congress honoring the 2,560th anniversary of the birth of Confucius or supporting the designation of National Pi Day. . . . I believe people want our time, energy and efforts focused on their priorities."

On the whole, more power to them, I say -- although this move against symbolic politics is, of course, itself a symbolic move, and a far cry from identifying genuine sources for budget cuts that do not involve a long list of costly entitlements the leadership has taken off the table.  It's a little like a doctor clipping a toenail to demonstrate his symbolic willingness to amputate a leg.  

The timing is interesting, though, if no doubt unintentional.  The story comes a couple of days after Thanksgiving, which has been the subject of congressional and presidential proclamations since the birth of the Republic.  And it comes in a year in which most members of Congress had no hesitation expressing the sense of the institution in favor of a National Day of Prayer.  One thing this history and continuing practice suggests, of course, is that the founding generation had a great willingness to expend time and ink on symbolic legislation, so Cantor's statement is surely wrong.

Of course, Cantor could have meant not that the founders had no suspicion that Congress would engage in symbolic legislation, but that they had no suspicion that this legislation would include Confucius.  I hope that's not what he meant.  (Elsewhere in the story, incidentally, Rep. Jason Chaffetz (R-UT) is quoted as saying "We shouldn't have done it until he was at least 2,600 years old."  Presumably Congressman Chaffetz is prepared to wait a few more centuries for a Christmas proclamation.)  But if it is, that raises the question what purposes these kinds of resolutions honoring our "civic religion" serve.  The legal justification for these kinds of actions is grounded on, among other things, the notion that these kinds of statements are anodyne and inoffensive, a recognition of our general culture and heritage rather than an effort to take sides in a culture war.  But another possibility (one I suggest in my forthcoming book) is that whatever purpose they once served, today these resolutions are intended to take sides, to provoke rather than unite: in our own age of religious pluralism and contestability, they aim to enlist the symbolic voice of government behind particular religious views.

That doesn't mean all of these kinds of statements are unconstitutional.  But it does suggest that we might have more than one reason to rejoice at the House Republicans' intention to cut back on symbolic resolutions.  And perhaps, as we wait to see whether the new leadership in fact cuts back on these resolutions in all circumstances, or whether it continues to gin them out for purposes of making statements on behalf of an actual or perceived religious majority, it will give them, and us, cause to reflect on what message they are actually trying to send with these statements, and to acknowledge the actual purpose of these statements with a little more candor and a little less disingenuous talk about civil religion, ceremonial deism, recognition of heritage, and so on.