Noticing a theme here? Yep, it's all Establishment Clause, all the time for me today.
Anyway, I'm reading Van Orden v. Perry, in which the Court upholds the display of the Ten Commandments on the Texas capital grounds in Austin, where it is one of twenty-one monuments described as reflecting Texas' identity. The majority contends that such a display does not constitute an endorsement of religion, and to illustrate that point they mention the frieze around the walls of the Supreme Court. The frieze displays various lawmakers throughout the ages, one of whom is Moses, holding a partial copy of the Ten Commandments. The Court argues that, since this display is acceptable, the Texas display must be as well. But there's a huge difference.
Saturday, November 5, 2011
The Origin of Christmas
The majority in an opinion upholding the display of creches at public Christmas displays refers to such nativity scenes again and again as depictions of the origin of Christmas. An essay by Michael McConnell argues that total secularism in society would abolish Christmas trees, Christmas lights, the star on top of the tree, etc., since each has a religious meaning. I don't doubt that those elements do have a religious meaning (though I don't know what the tree signifies). But the holiday of Christmas, as celebrated in America in 2011, did not "originate" with the birth of Jesus. According to Wikipedia, the gift-giving comes from Saturnalia, the trees, wreaths, and lights from the Roman new year, and the Yule log and much traditional Christmas food comes from various Germanic feasts, including, you know, Yule. That's the origin of Christmas: a whole bunch of ancient pagan winter festivals. Christianity co-opted those festivals, took perhaps the best of each of them, and then declared that the winter festival was now about Jesus' birth. (This, despite the unlikelihood of Jesus' having actually been born in late December.) Perhaps portraying the origin of the holiday is a secular purpose, but falsely portraying as the origin of what is actually an ancient pagan holiday co-opted by Christianity as having been Jesus' birth is plainly not one.
More on Establishment, Public Reason, and the Lemon Test
The three-pronged Lemon test, first used in Lemon v. Kurtzman to overturn state laws funding the teaching of secular subjects at parochial schools, states that a law is one respecting an establishment of religion, and therefore unconstitutional, unless it
It clearly means that the state is not using public reason! Instead we can see that the state's internal motivation for its action must be derived from some comprehensive doctrine, or some class of such doctrines. And this means that the state itself has subscribed to a comprehensive doctrine, or some class thereof. But what on earth is an establishment of religion if not the state's subscribing to a particular religious doctrine, or a particular class of religious doctrines? Suppose that New Jersey passed a law saying "The State of New Jersey believes in the divinity of Jesus Christ." This would be plainly unconstitutional, right? Even if it doesn't have any tangible effect on anyone directly, this is an establishment of religion. But when the state passes a law that one cannot possible support without believing in the divinity of Jesus Christ, that law contains, implicitly, the above statement. It is therefore just as unconstitutional, every bit as much an establishment of religion. One can broaden the statement, perhaps maximally to "the State of New Jersey believes in God." That's invalid, therefore anything which could not be supported without that belief is invalid. Prayer to open legislative sessions, or court sessions, or whatever: invalid. "In God We Trust" on the money: invalid. "Under God" in the Pledge of Allegiance: invalid. All of these things declare that the government, not just the people, believes in god. And the government is not allowed to believe in god, even if every single one of its officials does.
- has a secular legislative purpose;
- does not have the primary effect of either advancing or inhibiting religion; and
- does not result in an excessive entanglement with religion.
It clearly means that the state is not using public reason! Instead we can see that the state's internal motivation for its action must be derived from some comprehensive doctrine, or some class of such doctrines. And this means that the state itself has subscribed to a comprehensive doctrine, or some class thereof. But what on earth is an establishment of religion if not the state's subscribing to a particular religious doctrine, or a particular class of religious doctrines? Suppose that New Jersey passed a law saying "The State of New Jersey believes in the divinity of Jesus Christ." This would be plainly unconstitutional, right? Even if it doesn't have any tangible effect on anyone directly, this is an establishment of religion. But when the state passes a law that one cannot possible support without believing in the divinity of Jesus Christ, that law contains, implicitly, the above statement. It is therefore just as unconstitutional, every bit as much an establishment of religion. One can broaden the statement, perhaps maximally to "the State of New Jersey believes in God." That's invalid, therefore anything which could not be supported without that belief is invalid. Prayer to open legislative sessions, or court sessions, or whatever: invalid. "In God We Trust" on the money: invalid. "Under God" in the Pledge of Allegiance: invalid. All of these things declare that the government, not just the people, believes in god. And the government is not allowed to believe in god, even if every single one of its officials does.
Public Reason and Holiday Displays
John Rawls has this idea of public reason. In a pluralistic society, says Rawls (also assuming that we are and always will be in a pluralistic society), people have lots and lots of different so-called "comprehensive doctrines," religious, political, or moral philosophies that inform the entirety of a person's worldview. If two people holding different comprehensive doctrines try to conduct a discussion with each other, each one making arguments based thoroughly on their comprehensive doctrines, they might as well be speaking different languages, and will end up talking past one another. So Rawls has his idea of the overlapping consensus, which is roughly speaking the set of values that can be endorsed by all reasonable comprehensive doctrines in a society. Any member of pluralistic society, then, can assume that any other member of that same society will share the values in the overlapping consensus. Public reason consists of arguments made in terms of those consensus values, i.e. public reasoning means arguing in terms that any random member of society who does not share your comprehensive doctrine could share.
Rawls' big idea (okay, one of Rawls' many big ideas) about the terms of public discourse in a pluralistic democracy is that, while it is perfectly acceptable to make arguments in the public discourse which are rooted in one's comprehensive doctrine (typically but not exclusively a religion), when you do so you have to make sure to back up your doctrinal arguments with some arguments at public reason. Otherwise, why should anyone else in the society listen to you, except those who happen to share your comprehensive doctrine? Martin Luther King's A Letter from Birmingham Jail is a masterpiece of this method, moving back and forth between explicitly religious arguments addressed to his nominal audience, a group of white clergy, and secular arguments that track the religious ones and tend toward the same conclusion.
So, here's my thought about this notion of public reason. An absurdly big deal in Establishment Clause litigation (I have a presentation to give on the Establishment Clause this week!) is what kinds of holiday displays by the government are acceptable. A Christmas tree? A menorah? A nativity scene? What's the limit? Well, I have a theory: the appropriate rule is that there should be a good public-reason argument for setting up any holiday display. A Christian wants to put up a nativity scene because of their comprehensive doctrine. I, an atheist, have no reason to want a creche on government property, and I have a hard time imagining an atheist who did want one. But I, a random member of society presumed to lack a comprehensive doctrine, have plenty of reason to want a Christmas tree put up. For one thing, Christmas trees are absurdly pretty. For another, look, maybe Christmas is in some sense an important religious holiday, but it's a much, much more holiday in its purely secular component. Hell, there has historically been a War on Christmas, but it has always been waged by zealous Christians who believed the holiday insufficiently religious. Likewise Hanukkah: the ratio of Americans who "celebrate" Hanukkah to American Jews who actually celebrate Hanukkah is quite large, simply because the number of American Jews is tiny while Hanukkah is a pretty big-deal secular holiday. So we have plenty of public reason to want trees (which are pagan anyway!) and menorahs, but as best I can tell it's hard to find a public reason for the nativity scene.
Oh, and there's always a public reason to celebrate any religion that lets you eat chocolate or give presents.
Rawls' big idea (okay, one of Rawls' many big ideas) about the terms of public discourse in a pluralistic democracy is that, while it is perfectly acceptable to make arguments in the public discourse which are rooted in one's comprehensive doctrine (typically but not exclusively a religion), when you do so you have to make sure to back up your doctrinal arguments with some arguments at public reason. Otherwise, why should anyone else in the society listen to you, except those who happen to share your comprehensive doctrine? Martin Luther King's A Letter from Birmingham Jail is a masterpiece of this method, moving back and forth between explicitly religious arguments addressed to his nominal audience, a group of white clergy, and secular arguments that track the religious ones and tend toward the same conclusion.
So, here's my thought about this notion of public reason. An absurdly big deal in Establishment Clause litigation (I have a presentation to give on the Establishment Clause this week!) is what kinds of holiday displays by the government are acceptable. A Christmas tree? A menorah? A nativity scene? What's the limit? Well, I have a theory: the appropriate rule is that there should be a good public-reason argument for setting up any holiday display. A Christian wants to put up a nativity scene because of their comprehensive doctrine. I, an atheist, have no reason to want a creche on government property, and I have a hard time imagining an atheist who did want one. But I, a random member of society presumed to lack a comprehensive doctrine, have plenty of reason to want a Christmas tree put up. For one thing, Christmas trees are absurdly pretty. For another, look, maybe Christmas is in some sense an important religious holiday, but it's a much, much more holiday in its purely secular component. Hell, there has historically been a War on Christmas, but it has always been waged by zealous Christians who believed the holiday insufficiently religious. Likewise Hanukkah: the ratio of Americans who "celebrate" Hanukkah to American Jews who actually celebrate Hanukkah is quite large, simply because the number of American Jews is tiny while Hanukkah is a pretty big-deal secular holiday. So we have plenty of public reason to want trees (which are pagan anyway!) and menorahs, but as best I can tell it's hard to find a public reason for the nativity scene.
Oh, and there's always a public reason to celebrate any religion that lets you eat chocolate or give presents.
Friday, November 4, 2011
Note to Republicans re: Herman Cain
Apparently Republicans and Republican-leaning independents believe, 55%-39%, that the allegations of sexual harassment against Herman Cain are not a serious matter. Moreover, 69% say the situation will not make a difference in how likely they are to vote for Cain for President, and the remainder split just 23%-4% as to whether it makes them less or more likely to support him. (Honestly, 4%? Allegations of sexual harassment make you more likely to support the guy?) Now, okay, on one level I get it. If we were in the general election, and it were Cain vs. Obama, and I agreed more with Cain on the issues than with Obama (which is emphatically not the case), I'd vote for Cain. I'd vote for him despite the improprieties in his past. For a more substantive example, there have been lots of allegations of sexual misconduct against Bill Clinton throughout his life. If I had been eligible to vote in 1992 or 1996, even knowing everything about Clinton's sexual misconduct that we know now, I'd've voted for him over Bush, Dole, and Perot, practically without a second thought.
But, uh, Republicans, you do know it's not the general election yet, right? And, um, that Barack Obama guy you claim to be so desirous of kicking out of office? He would be cackling for a week if you nominated a guy who, on top of already being Herman "9-9-9" Cain, Herman "Bad-Pizza Mogul" Cain, Herman "Ubeki-beki-beki-stan" Cain, has also been accused of sexual misconduct. No incumbent President would dare pray for an opposing candidate that weak on paper, because it would be an unreasonable request. You couldn't possibly expect to be that lucky. Seriously, how do you not get that, when the matter at hand is who you want to be your party's standard-bearer, a history of sexual impropriety is something you want to avoid?!?
But, uh, Republicans, you do know it's not the general election yet, right? And, um, that Barack Obama guy you claim to be so desirous of kicking out of office? He would be cackling for a week if you nominated a guy who, on top of already being Herman "9-9-9" Cain, Herman "Bad-Pizza Mogul" Cain, Herman "Ubeki-beki-beki-stan" Cain, has also been accused of sexual misconduct. No incumbent President would dare pray for an opposing candidate that weak on paper, because it would be an unreasonable request. You couldn't possibly expect to be that lucky. Seriously, how do you not get that, when the matter at hand is who you want to be your party's standard-bearer, a history of sexual impropriety is something you want to avoid?!?
Thursday, November 3, 2011
The All-Encompassing Equal Protection Clause
One of my grandfather's books, Structure and Relationship in Constitutional Law (which I recently read for the first time), consists in large part of the exercise of arguing that most or all of the content of the Due Process and Equal Protection Clauses (and perhaps Privileges and Immunities, too, if it weren't so diminished by case-law) would be contained in the Constitution even if those Clauses had never been written into it. Likewise he argues that the First Amendment freedom-of-speech right, at least as applies to its 'core' of political speech rights, would be properly read into the Constitution even if the words specifically granting the right were lacking. He uses his "structural" reasoning form, in essence arguing that the structure our Constitution establishes, that of a federal republic, and the relationship of citizen contained in the first clause of the Fourteenth Amendment require, between the two of them, rights to political (and quasi-political) speech, due process of law, and equal protection of the laws.
It's a very interesting line of argument, and I think I basically agree with him about it, but whereas he wanted to take away the Equal Protection Clause and then reconstruct it from structure and relationship, I find myself drawn to seeing how much of the rest of the Constitution we can strip away and then reconstruct purely from the Equal Protection Clause. (All of this is on the assumption that we have good reasons to incorporate the Equal Protection Clause against the federal government as well as the states, which (under Bolling v. Sharpe) we do.) I think it's obvious that the Fifteenth and Nineteenth Amendments can be properly read into the Equal Protection Clause, and (in combination at least with the citizenship and Privileges and Immunities Clauses) so can the Thirteenth. More ambitiously, I think a lot of the First Amendment can be properly derived from Equal Protection. Certainly the Establishment Clause, which is construed as prohibiting any kind of second-class citizenship, or even 1A-level citizenship, constructed on the basis of religion. Equal Protection prohibits second-class citizenship on the basis of anything. If I were in a more ambitious mood or it weren't late at night (and me with seventy pages of reading to go before I sleep!), I might try to construct arguments for inferring the Free Exercise Clause or the protections of speech, the press, assembly, and petition from Equal Protection, although as Grandfather noted the latter protections can be largely derived just from the words "democracy" and "citizenship."
Since it comes after the First Amendment, I also think it's reasonable to view the Equal Protection Clause as modifying to a certain extent the content or structure of the rights in the First Amendment. In particular I think the Equal Protection Clause has interesting ramifications for the Free Exercise Clause, in that I'm pretty sure under Equal Protection if not under the Establishment Clause, as Scalia claims, government shouldn't get to discriminate against the class of non-religious persons. That statement has some import in considering the question of whether to grant religious exemptions to facially-neutral laws of general applicability: mustn't we also grant exceptions for secular conscience? And, if so, what is left of law? Cannot the pothead claim that his conscience demands that he smoke marijuana? And if not, how can we reject this claim, while accepting the claim by certain persons that their religion requires that they smoke peyote, and not in essence give a lesser set of rights to the non-religious?
It's a very interesting line of argument, and I think I basically agree with him about it, but whereas he wanted to take away the Equal Protection Clause and then reconstruct it from structure and relationship, I find myself drawn to seeing how much of the rest of the Constitution we can strip away and then reconstruct purely from the Equal Protection Clause. (All of this is on the assumption that we have good reasons to incorporate the Equal Protection Clause against the federal government as well as the states, which (under Bolling v. Sharpe) we do.) I think it's obvious that the Fifteenth and Nineteenth Amendments can be properly read into the Equal Protection Clause, and (in combination at least with the citizenship and Privileges and Immunities Clauses) so can the Thirteenth. More ambitiously, I think a lot of the First Amendment can be properly derived from Equal Protection. Certainly the Establishment Clause, which is construed as prohibiting any kind of second-class citizenship, or even 1A-level citizenship, constructed on the basis of religion. Equal Protection prohibits second-class citizenship on the basis of anything. If I were in a more ambitious mood or it weren't late at night (and me with seventy pages of reading to go before I sleep!), I might try to construct arguments for inferring the Free Exercise Clause or the protections of speech, the press, assembly, and petition from Equal Protection, although as Grandfather noted the latter protections can be largely derived just from the words "democracy" and "citizenship."
Since it comes after the First Amendment, I also think it's reasonable to view the Equal Protection Clause as modifying to a certain extent the content or structure of the rights in the First Amendment. In particular I think the Equal Protection Clause has interesting ramifications for the Free Exercise Clause, in that I'm pretty sure under Equal Protection if not under the Establishment Clause, as Scalia claims, government shouldn't get to discriminate against the class of non-religious persons. That statement has some import in considering the question of whether to grant religious exemptions to facially-neutral laws of general applicability: mustn't we also grant exceptions for secular conscience? And, if so, what is left of law? Cannot the pothead claim that his conscience demands that he smoke marijuana? And if not, how can we reject this claim, while accepting the claim by certain persons that their religion requires that they smoke peyote, and not in essence give a lesser set of rights to the non-religious?
Tuesday, November 1, 2011
Predicting the Future is Hard, Jose Reyes Edition
Today I read several things about the impending free agency of Jose Reyes. One of them said that an insider with the organization told the writer that the Mets have no intention of keeping Reyes, that their offer will be cursory. Later that same article claimed that, also on the basis of some kind of insider rumor "knowledge," that the Detroit Tigers plan on making a serious run at Reyes. Another article, predicting the destinations of 50 top free agents, predicted that Jose would find his way to Milwaukee, and also mentioned the Nationals, Braves, Phillies, Giants, Pirates, Reds, Twins, Rays, and Cardinals as teams needing shortstop help (aside from, obviously, the Mets in whom Reyes' departure would leave a gaping hole). What with Milwaukee's having declined an option on Yuniesky Betancourt, despite his awesome post-season run, I can't really argue that the Brewers might be serious players, but a) Reyes won't sign with a team that has Michael Bourn, as he would have to compete for the leadoff spot; b) the Phillies will not sign Jose Reyes; c) I have repeatedly heard that the Giants might be interested in Rollins (who might be interested in them) but definitely feel Reyes is out of their price range; d) the Pirates, Reds, Twins, and Rays are all just way too small-money teams to sign Reyes (as the article acknowledges); e) the Cardinals and Rafael Furcal have expressed mutual interest, though obviously not on the terms of the $12 million option the Cardinals declined yesterday; e) the Nationals also ought to lack the funds to go after Reyes, and they already have a passing-fair shortstop (though not one without his problems).
Finally, I read an article saying that Dave Dombrowski, the General Manager of the Detroit Tigers, stated in so many words at a press conference today that the team would not go after Reyes. Moral of the story? Prediction is hard, especially about the future. One guy says he has insider source that the Tigers are in, and then we get objective "outsider" confirmation that they aren't in. So far what we know is that the Mets haven't signed Reyes yet. Every single report I've heard, and there are lots of them, suggest that no one expects the Mets to sign Reyes during their exclusive negotiation period. It also seems like the "market" for Reyes will be surprisingly weak, with most of the teams anyone has suggested as potential landing spots sounding cautious if not skeptical if not uninterested. That's what we know. These facts are consistent with the idea that the Mets really have no intention of keeping Reyes, and will only make a perfunctory offer. They're also consistent with the idea that the Mets just don't want to outbid themselves, have every intention of going hard after Reyes, but don't want to make the kind of Piazza-esque offer that is so clearly better than anything else Reyes could get on the open market that it removes the desire to test said market unless they have to. If Reyes hits free agency on Thursday and discovers that there just aren't any teams interested in signing him to a seven- or even six-year deal, so that it's the Mets' five-ish-year offer versus other five-ish-year offers, then we'll start to see whether there is genuine interest between the Mets and Reyes in connecting at a reasonable price. Not before then, not on the basis of anonymous tips from so-called insiders, and not from such anonymous tips reported by people who have previously declared early and often that they don't think it would be wise for the Mets to bring Reyes back.
Finally, I read an article saying that Dave Dombrowski, the General Manager of the Detroit Tigers, stated in so many words at a press conference today that the team would not go after Reyes. Moral of the story? Prediction is hard, especially about the future. One guy says he has insider source that the Tigers are in, and then we get objective "outsider" confirmation that they aren't in. So far what we know is that the Mets haven't signed Reyes yet. Every single report I've heard, and there are lots of them, suggest that no one expects the Mets to sign Reyes during their exclusive negotiation period. It also seems like the "market" for Reyes will be surprisingly weak, with most of the teams anyone has suggested as potential landing spots sounding cautious if not skeptical if not uninterested. That's what we know. These facts are consistent with the idea that the Mets really have no intention of keeping Reyes, and will only make a perfunctory offer. They're also consistent with the idea that the Mets just don't want to outbid themselves, have every intention of going hard after Reyes, but don't want to make the kind of Piazza-esque offer that is so clearly better than anything else Reyes could get on the open market that it removes the desire to test said market unless they have to. If Reyes hits free agency on Thursday and discovers that there just aren't any teams interested in signing him to a seven- or even six-year deal, so that it's the Mets' five-ish-year offer versus other five-ish-year offers, then we'll start to see whether there is genuine interest between the Mets and Reyes in connecting at a reasonable price. Not before then, not on the basis of anonymous tips from so-called insiders, and not from such anonymous tips reported by people who have previously declared early and often that they don't think it would be wise for the Mets to bring Reyes back.
Subscribe to:
Posts (Atom)