Joel Nichols (University of St. Thomas – Minnesota) has posted Misunderstanding Marriage and Missing Religion on SSRN. The abstract follows.
This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).
Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. Read more
Yet another religious display case, this time from Big Mountain, Montana. For more than 50 years, the Knights of Columbus has maintained a six-foot tall statue, “Big Mountain Jesus,” as a tribute to World War II veterans who told of seeing similar shrines while fighting in Italy. The statue is on public land administered by the US Forest Service. In response to a complaint from the Freedom from Religion Foundation that the statue violates the Establishment Clause, the Forest Service told the Knights the statue could not remain. This decision caused a public outcry, and the Forest Service is now reconsidering. One possible solution is a land swap, in which the Forest Service would give the 25 x 25 foot parcel on which the statue stands to a nearby ski resort in exchange for another piece of real estate.
This dispute is very similar to Salazar v. Buono, the Mojave Desert Cross case from 2010, the last occasion on which the Court addressed religious displays on public property. Salazar involved a Latin cross erected on public land by a private group as part of a war memorial; when lower courts ruled the cross unconstitutional, the government executed a land swap to convey the memorial to private parties. Procedural complications made Salazar rather narrow, though, and it doesn’t give too much guidance here. Quite apart from Salazar, the Court’s jurisprudence on public religious displays is famously unpredictable. Under some versions of the endorsement test, “Big Mountain Jesus” is pretty clearly unconstitutional. But the Court doesn’t always apply the endorsement test, and Justice Kennedy’s plurality opinion in Salazar indicates that even a sectarian display, in the context of a longstanding war memorial, may be constitutional. The Forest Service plans to announce its decision next year.
Most contemporary Thanksgiving proclamations (from the 20th century forward) have been relatively short — usually one-paragraph affairs which noted the custom of giving thanks to God and got on with it. George H.W. Bush’s Thanksgiving proclamations tended to be a bit longer and it is evident that he put some time into making them unique. They are often laced with citations, sometimes from American history, sometimes from scripture, and they stand out for the care with which they were conceived. Below, the text of President Bush’s first Thanksgiving proclamation in 1989.
On Thanksgiving Day, we Americans pause as a Nation to give thanks for the freedom and prosperity with which we have been blessed by our Creator. Like the pilgrims who first settled in this land, we offer praise to God for His goodness and generosity and rededicate ourselves to lives of service and virtue in His sight.
This annual observance of Thanksgiving was a cherished American tradition even before our first President, George Washington, issued the first Presidential Thanksgiving proclamation in 1789. In his first Inaugural Address, President Washington observed that “No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States.” He noted that the American people – blessed with victory in their fight for Independence and with an abundance of crops in their fields – owed God “some return of pious gratitude.” Later, in a confidential note to his close advisor, James Madison, he asked “should the sense of the Senate be taken on … a day of Thanksgiving?” George Washington thus led the way to a Joint Resolution of Congress requesting the President to set aside “a day of public Thanksgiving and Prayer, to be observed by acknowledging with grateful hearts the many and signal Favors of Almighty God.”