Thursday, June 30, 2005
Thanks to Rick for continuing the conversation (here).
About Rick's first point: Rick seems to me to be entertaining the possibility that there should be *two* nonestablishment norms, not one--one norm for the federal government, another for state governments. My assumption is that there is one nonestablishment norm--a norm that governs both the federal government and state governments. My question, in the essay: What is the best understanding of this (one) norm?
About Rick's second point: "The First Amendment refers to 'mak[ing] law.' Arguably, symbolic expression -- e.g., putting up a display -- is not lawmaking. If it is not, then is it clear that the same non-establishment norm should apply?" Yes, Ithink it is clear: There is one nonestablishment norm, and it applies to all government action, whether or not the action is legislative in character. (Does Rick or anyone else reading this think that the nonestablishment norm does *not* forbid government to put up displays meant to communicate that insofar as the government is concerned, "Christianity is the best--the truest, the most spiritually efficacious, etc.--religion"?) I'm with Michael McConnell on this: Post-incorporation, the norm is that government may not establish religion (not that government may not make a law establishing religion). My question, again: What is the best understanding of this norm?
About Rick's third point: "Certainly, the matter sounds in free exercise, but there are, in fact, 'nonestablishment theories percolating out there' that would seem to suggest that Establishment Clause has work to do here, too." That's interesting. I did not know that. I'd like to hear something about the theory or theories--enough to begin to assess its or their plausibility.