Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 29, 2005

Should We Care About Religious Symbols Cases?

To me, one of the most interesting questions discussed at the SCOTUS 10 Commandments Sub-Blog is whether these cases about religious symbols really should matter much to anyone.  (Some liberals such as Burt Neuborne suggest relaxing their opposition because lawsuits against these symbols unnecessarily alienate a lot of Americans.)  From the standpoint of Catholic legal theory -- or more broadly, from the standpoint of the vitality of Christian faith or religious faith in civil society -- should we care about whether the government puts up plaques expressing Christian (Jewish-and-Christian, monotheistic) statements?

In one of my SCOTUS blog posts I argued that fighting for official religious symbols "should be at most a low priority for religious believers, and at worst [such fights] tempt them away from more important goals."  We should be less concerned with what the government itself says, and more concerned with whether religious entities -- schools, social services, and so forth -- are able to pursue their missions and contribute to society without government interference or discouragement and with government cooperation when appropriate.  Thus it's far more important to ensure that religious schools can participate in school-choice funding than it is to get a "few scraps" of religion like a prayer at graduation or a plaque in the courthouse.

Fighting for symbols is not just a lower priority, it actually harms the more important goals.  Energy and other resources go into symbols cases instead of the other ones.  Other citizens, even many of good will, become alienated from the orthodox religious sector because they think its main goal is selfish, to get official recognition of its preferred status.  And believers are wrongly led to think that we can helped toward being a "Christian" nation by virtue of symbolic pronouncements -- what the prophet Amos might have criticized as empty "solemn assemblies" -- rather than by "let[ting] justice roll down like waters" (Amos 5:21-23).

Consider also that if we care about religious organizations having a distinctive freedom to pursue their mission in the face of the far-reaching modern state, we have to argue for treating religion specially.   For example, if we want Catholic Charities to be able to resist paying for contraceptives for employees, that means arguing for special accommodation from an otherwise generally applicable law on the basis of religious conscience.  In my experience as a religious-liberty litigator, it is much easier to be able to argue for such distinctive protection for religion if I can point out that, over on the Establishment Clause side of the First Amendment, religious symbols are also specially limited from benefitting from government promotion.  That argument from reciprocity has gut-level appeal to many who would otherwise be hostile to any special concern for religious liberty.  But we lose that argument from reciprocity if we always complain about religious symbols being specially barred from official government displays:  people respond that if religion wants more equal treatment in official pronouncements, it should also be equally subject to all of the laws in a modern welfare state no matter how burdensome the law.

I recognize that there are arguments on the other side, arguments for fighting on behalf of official religious symbols.  As Noah Feldman put it on the SCOTUS blog, people think that official symbols do matter because they really are a proxy for the most fundamental question affecting Christian legal theory, namely, "whether religious values should inform public policy choices or rather should remain a private matter, irrelevant to the state's public decisions and the public reason that justifies it."   

So setting aside the Establishment Clause issues per se, I'd be interested in other's thoughts:  should we care about official religious symbols?

Tom B.

https://mirrorofjustice.blogs.com/mirrorofjustice/2005/06/should_we_care_.html

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