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Equality and Establishment: Reply to Nussbaum

I thank Martha Nussbaum for her gracious response to my post a few days ago. Here I offer a brief reply.

As to my first hypothetical -? rotating school prayers -? I agree with Prof. Nussbaum but I think the argument she makes is less about equality than liberty. I think it is right to worry that the proposal would involve coercion of schoolchildren and therefore violate liberty of conscience. But my point is that the coercion could be made to occur, more or less, on an equal basis. That the practice remains objectionable shows, I think, that there is more going on to the Establishment Clause than a respect for equality, i.e., that liberty plays at least an independently important role. Perhaps I misread Nussbaum in saying otherwise, but the point of my original post is to say that a pure equality theory leads to more unconventional doctrine.

Prof. Nussbaum equates my second hypothetical ?- public school prayer arising in a religiously homogeneous community -? with the political power granted a religious body in Kiryas Joel. I think my hypothetical is quite different. In Kiryas Joel, the state of New York carved out a district for a Satmar Hasidic sect and the Rabbi who was the eldest son of the Grand Rebbe, served ?as the village rov (chief rabbi) and rosh yeshivah (chief authority in the parochial schools).? In this case, it is reasonable to say that a religious body is exercising the ?reins of government.? But my hypothetical imagines something else. Suppose a small community is entirely Christian, with one Catholic church and multiple Protestant churches of multiple denominations. The state never creates a special district along religious lines, there is no single religious leader of the community, and none of the religious leaders there are serve in any capacity in the school system. All I imagine is that, in this homogenous community, a school principal, at his own initiative, comes up with a prayer that is acceptable to everyone in the community. Indeed, suppose that a different principal at a different public school (and for good measure, belonging to a different church than the first principal), comes up with a different generically Christian prayer that is also acceptable to all community members. I do not see how these actions, if legally permitted, can be construed as giving a religion or religious group ?the reins of government.? (Or, if one adopts a very expansive view of what it means to give a religion the reins of government, it is probably also offended by the fact that all the elected school board members in this community are Christians (as are all members of the populace), even if there is no school prayer).

I believe Nussbaum and I agree that the official public school prayer here would not offend equality at the local level. The harder question concerns the state or national level. One argument against the practice I noted initially is that it would deter people of other religions from moving to the community, which is objectionable. The risk is factually speculative, but may be sufficient to ban the practice. Nussbaum, however, makes a different argument: that the public school prayer is a signal that the religion compatible with the prayer is ?a preferred religious body, and, by contrast, a signal to other religions that they are dispreferred. That is an equality problem even if the community contains no members of the other religions, because the nation is larger than that community, and the statement is made in the context of that larger nation.?

To some degree, this argument also presumes that the practice gives the religious body the reins of government power, which I have just argued is not the case. But more importantly, symbolism arguments like this are ultimately empirical. Arguing without empirical data, we naturally consult our intuitions and mine are simply different. I realize I may be idiosyncratic, but the signal I would receive from this practice is that the members of the community where it occurs, in all aspects including religion, are preferred within their community, just as they should be, given local democracy. I would not see the religion in that community as being preferred at the state or national level because I know that any religiously homogenous community would be treated the same, regardless of what religion (or non-religion) it contained. By hypothesis, the court would on principle permit official school prayers whenever they were consistent with the religious views of everyone in the community. This would be easier to notice if it turned out that there was also a second community in the same state consisting entirely of Jews and a third community consisting entirely of atheists and those communities were similarly allowed to have, respectively, official school prayers and official school anti-religion statements. But even if these other communities do not exist, I don?t see how my knowledge that people in another community are practicing their religion on public property, be it a park or a school, offends my sense of being an equal citizen of my local community, where we don?t allow this practice (because of religious heterogeneity), or an equal citizen of my state and nation, at which levels courts won?t allow this practice (because of inevitable religious heterogeneity at those levels). To the contrary, given that such homogenous communities would be rare, the signal I would receive from the practice is that the community in question is, to be blunt, oddly narrow-minded and uninteresting to be so lacking in diversity that a single prayer could be acceptable to everyone.

Again, I think there may remain valid reasons to object to this hypothetical practice, but not on equality grounds.

Full post as published by The University of Chicago Law School Faculty Blog on October 21, 2008 (boomark / email).