Spiritual: January 2011 Archives

I wrote a little a couple weeks ago about the early 1960s Supreme Court cases Abington School District v. Schempp and Murray v. Curlett (and perhaps to a lesser degree Engel v. Vitale). I said at the time that I have two further posts planned, one on substantive issues that weren't central to the cases and another on the central questions the Court dealt with. This post is the first of those two. Here are four relatively independent observations from the oral arguments I listened to that affect the main argument to some degree but aren't very closely about the central issue. I have some more thoughts on the fundamental issue to come at some point.

More or Less Sectarian to Comment?

There's an interesting argument among the various lawyers and justices during the oral arguments for these cases, about whether it's more sectarian or less sectarian to read from the Bible without comment or with comment. One argument is that reading without comment is more like studying the Bible as literature, since it doesn't involve endorsement or criticism, whereas commenting on it expresses a viewpoint. On the other hand, some argued that simply reading it seems more like endorsement, since there's no room for critiquing anything in the text or showing room for interpreting in different ways, whereas commenting on it allows for critical discussion or demonstration of different interpretations. I suspect the two views have something different in mind for what the commenting would be like, but I thought it was an interesting debate. The two lawyers defending two different Bible-reading laws were making these opposite claims. One law explicitly disallowed comment, and the other allowed for it. But the justices seemed to disagree among themselves about which claim was more correct.

Absolute or Potentially-Conflicting Rights?

Two lawyers on the same side on the general questions disagreed about whether the Constitution is vague (in the following sense, anyway). One insisted that any particular policy (1) either is or is not an establishment of religion and (2) either is or is not a violation of someone's free exercise of religion. Another countered that whether something falls into either category comes in degrees. Justice Stewart joined in on this, also pointing out that the free exercise clause and the establishment clause are sometimes at odds with each other, presumably implying that it's the job of the Supreme Court to figure out which applies more strongly in a particular case. (This, I think, is a sign of what later came to be seen as his moderate approach as a swing voter on key cases in the more ideologically-diverse Supreme Court to come. But he comes across as a hard-line conservative in this case, given where everyone else on the Court was. I'm not sure Justices Thomas and Scalia differ from Justice Stewart on these questions very much.)

The lawyer for the Unitarians who were suing the school, on the other hand, refused to call these prohibitions absolute but thought both clauses are as close to absolute as possible. He allows for some cases to be so insignificantly establishing or so insignificantly diminishing of free exercise that they're not worth enforcing. For example, he says this of "In God we trust" on coins, which he doesn't think anyone would have standing to sue about. But he also insisted that it isn't a genuine violation in such cases. It's not an infringement of a right, on his   view, unless it's enforceable in court. So that's how he gets the near-absolute. Smaller violations are defined away as not violations. Such is the magic of legal positivism.

He admitted to three examples to show that he's not strictly an absolutist on this. Military and prison chaplaincies are one example. We infringe on rights to free expression of religion to remove someone from their religious outlet without providing an alternative, so the clear establishment in chaplaincies is allowed despite being an establishment of religion. The other issue has to do with taxation, perhaps tax exceptions for religious institutions, but I didn't get a good sense of the argument there. It might have something to do with religions being infringed in their free expression if some of their money is taken for government use, and that's why it's ok for governments to establish them in some sense by exempting them from taxes. I find the latter case much less convincing as an establishment, but I'm not sure what it is if the argument is something else.


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