the proper candy-cane-to-Jesus ratio is five

Nancy Leong argues in a recent blog post that the Establishment Clause protects religious conscience by preventing the secular power interests of government from contaminating the purity of religion. A pretty common argument, I think, but Prof. Leong’s particular framing implicates some of the themes of my recent post on the peculiar cultural origins of the First Amendment and the awkwardness of its application to certain religions. Her primary observation is that government should not be in the business of making complex, fact-specific inquiries into religious practice:

When government and religion become involved, we risk that secular governmental interests will corrupt sacred religious ones. Indeed, our First Amendment jurisprudence is at its weakest when it involves the courts in fact-intensive scrutiny of religious beliefs, practices, displays, or traditions.

The doctrine governing holiday displays of religious items erected by governments provides a useful example. Under the test set forth in Lemon v. Kurtzman and later refined in religious-display cases such as Lynch v. Donnelly and Allegheny v. ACLU, courts examine whether such a display has a secular purpose, whether the display’s principal or primary effect is to advance or inhibit religion, and whether the display creates an excessive entanglement of government with religion. The bottom line is that this is a multifaceted, complex, and highly fact-specific inquiry.

This doctrinal tangle engenders a troubling degree of judicial oversight of religious displays. In ACLU v. Schundler, for example, the court considered a display including a crèche, a menorah, a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols. The appellants argued that an overly detailed judicial examination of the display would be tantamount to asking “how many candy canes offset one Jesus?” Yet in effect this is precisely what the court did, devoting twenty paragraphs to an analysis of the various elements of the display and their effect on the viewer . . . .

In my view, a bright light better serves the First Amendment.

A bright line certainly benefits law students, so I suppose I should be grateful. But, as I suggested in the previous post, courts delve into complex and ultimately unsolvable inquiries all the time, not least in the Fourth Amendment context. How many candy canes offset one Jesus? Might as well ask how much privacy a drug bust is worth. These are questions without answers; but we ask the courts to answer them anyway.

Prof. Leong suggests that we can wall off the state from the church by saying that “public religious displays simply have no place on government property unless their significance is historical rather than religious.” But even on its own terms, I’m not sure that isn’t just pushing the problem into another corner. In the stairwell leading to the Great Hall of the main DOJ building in Washington, for instance, there is a series of murals depicting “Great Codifiers of the Law.” The Great Codifiers include Jesus and Moses, who are obviously religious figures, as well as historical figures deeply associated with religion, like the theologian Thomas Aquinas and the Emperor Justinian, who cracked down on Christian heterodoxy in the Byzantine Empire. Of course, there are also murals of Blackstone and Lord Coke and Chief Justice Marshall. But it does make you wonder — when it comes to displays whose significance is “historical rather than religious,” how many Blackstones offset one Jesus?

In the previous post, I suggested that the First Amendment’s “bright line” simplicity is culturally-specific; it works very well for religions which, like mainline Protestantism, operate primarily in the mind and the conscience, and much less well for religions whose practice and substance is rooted in the physical world. Religions that require the ceremonial use of non-fungible sacred sites and objects, drugs, sexual acts, animal sacrifice, and so on simply pose challenges that the drafters of the First Amendment (not to mention the 20th-century judges who have much of the First Amendment framework) were not prepared to think about.

To accommodate such religions very likely requires more than a binary, government’s-in/government’s-out approach to religion. It requires fact-intensive, complex analysis to separate legitimate religious needs or religious expressions from the facetious or fraudulent. It requires, to borrow an idea from another realm, not that government be “colorblind” to religion, but rather, that it take religion into account. Otherwise, it cannot hope to provide the much-vaunted American “freedom of religion” to anyone outside the subset of people for whom religion is purely a mental construct, with no ties to the physical world. The number of people for whom that is true, on a global scale, may be smaller than the number of people for whom it is not true. Consider, for example, that Muslims, who significantly outnumber Protestants, consider the Ka’aba and Mecca to be non-fungible — a fact that has significant ramifications in American foreign policy. The U.S. government, in other words, fails to make a complex, fact-specific inquiry into the beliefs of Muslims at its peril. And that is to say nothing of the many other policy decisions that may impact place-specific or otherwise tangible religious practices at home and around the world — especially among indigenous peoples.

In short, the First Amendment’s “bright line” may act subtly but in real ways to privilege the kind of religion that has always been most prevalent in America, and to marginalize other religions and worldviews. But even if we found that desirable — and I have no doubt that some do — we cannot avoid dealing with those religions, although we can certainly fail to deal with them in a just, or even profitable, way.

I see the value in a bright line. It’s easy, for one thing. And as someone of no religion at all, I would adamantly prefer that the United States be extremely cautious about entangling itself with religion. But religion is entangled with life. It is entangled with law. Perhaps a good faith effort to do justice by taking account of, and making reasonable accommodations for, religion is healthier and fairer than trying to pretend the government can’t see it.

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