Posted on by Marc O. DeGirolami

Another View of Lynch v. Donnelly

Professor Frederick Gedicks (BYU Law), as Andrew Hamilton notes below, argues in the linked paper that Lynch v. Donnelly is a really terrible Establishment Clause decision — indeed, “anti-canonical.”  With respect, I see things a little differently than Fred.  Fred’s claim that “secularized” religious symbols drain such symbols of their “religious significance” is a quite common one.  “Secularism,” in Fred’s piece and for many academic critics of Lynch, means non-religious.  “Secular” and “religious” are antipodes, and it would be inconceivable that a symbol might partake of both qualities.  For Fred, the more “secular,” the less “religious.” 

This is why Fred is confounded and maybe even a little irritated by the Lynch majority’s twin claims that (1) the crèche conveys a “secular” meaning, inasmuch as it symbolizes “a significant historical religious event long celebrated in the Western World,” and (2) the secular significance of the crèche does not in any way reduce or diminish its religious significance.  Lynch, 465 U.S. 668, 680 (1984).  For Lynch’s critics, when the government commemorates a religious event by displaying a religious symbol, it concomitantly bleeds that symbol of its “religious” significance.  And this is also why critics like Fred prefer the dissenting position of Justice Brennan, who wrote that the majority was in reality “explain[ing] away” the crèche’s religious meaning,” or, as Justice Blackmun had it, that the majority was transforming the crèche into a “neutral harbinger of the holiday season.” 

But it does not seem to me that the meaning of symbols is a zero sum game. Read more

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Muniz-Fraticelli on The Distinctiveness of Religious Liberty

Victor M. Muniz-Fraticelli  (McGill – Faculty of Law) has posted The Distinctiveness of Religious Liberty. The abstract follows. – ARH

The model of religious freedom in diverse liberal-democracies has been mistakenly incorporated into the multicultural paradigm. The wholesale incorporation of the religious liberty paradigm into the multicultural paradigm is an institutional, historical, and conceptual mistake, and it distorts our understanding of the institutions that enshrine religious liberty and underlie our justification of them. The Western paradigm of religious liberty is a complex product of diverse historical conflicts and political traditions, and only contingently overlaps the multicultural argument. The purpose of this essay is to differentiate religious liberty from multiculturalism as theoretical categories, and to at least identify some of the consequences of this differentiation.

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Gedicks on Lynch v. Donnelly

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted Lynch v. Donnelly and the Terminal Silliness of Secularized Religious Symbols. The abstract follows. – ARH

Prepared for a symposium, this essay argues that Lynch v. Donnelly (1983) belongs in the pantheon of anti-canonical bad Supreme Court decisions. Widely viewed as a victory for conservative Christians in their long-running battle against the secularization of public life, Lynch held that a state-sponsored Christmas nativity depicting the traditional biblical account of Jesus’s birth did not violate the Establishment Clause because it was surrounded by candy canes, Santa Clause, reindeer, and other secular symbols of the Christmas holiday.

The essay argues that the Lynch majority failed to explain why this was not a violation of the Establishment Clause, and also failed to articulate any principle that could be applied with even modest predictability in subsequent religious symbol cases, resulting in a line of decisions whose unifying rationale remains obscure.

Lynch and its progeny suggest that government may appropriate religious symbols for its own uses only if the context in which the symbol is displayed empties it of contemporary religious significance. Lynch is thus a pyrrhic victory for religious conservatives, an ironic dismissal of the relevance of faith to American public life that permits the government to use religious symbols only if it communicates that they are not religiously meaningful.

Posted on by Marc O. DeGirolami

“Law and Religion in Public Life” (Hosen & Mohr eds.)

This collection of essays, Law and Religion in Public Life: The Contemporary Debate (Routledge 2011), edited by Nadirsyah Hosen and Richard Mohr (both of Wollongong) focuses specially on Australian issues and also contains a number of interesting looking discussions on matters of more general relevance.  The publisher’s description follows.  — MOD

With religion at centre stage in conflicts worldwide, and in social, ethical and geo-political debates, this book takes a timely look at relations between law and religion. To what extent can religion play a role in secular legal systems? How do peoples of various faiths live successfully by both secular laws as well as their religious laws? Are there limits to freedom of religion? These questions are related to legal deliberations and broader discussions around secularism, multiculturalism, immigration, settlement and security.

The book is unique in bringing together leading scholars and respected religious leaders to examine legal, theoretical, historical and religious aspects of the most pressing social issues of our time. In addressing each other’s concerns, the authors ensure accessibility to interdisciplinary and non-specialist audiences: scholars and students in social sciences, human rights, theology and law, as well as a broader audience engaged in social, political and religious affairs. Five of the book’s thirteen chapters address specific contemporary issues in Australia, one of the most ethnically diverse countries in the world and a pioneer of multicultural policies. Australia is a revealing site for contemporary studies in a world afraid of immigration and terrorism. The other chapters deal with political, legal and ethical issues of global significance. In conclusion, the editors propose increasing dialogue with and between religions. Law may intervene in or guide such dialogue by defending the free exchange of religious ideas, by adjudicating disputes over them, or by promoting a civil society that negotiates, rather than litigates.