Balkinization: Yet More on Government Promotion of Religion

Yet More on Government Promotion of Religion

Marty Lederman

FWIW, Jack's recent colloquy with Rick Garnett strikes me as a variation on a similar discussion I had with Rick (and Doug Laycock) here almost exactly one year ago. Jack, that 2006 discussion might reveal where you (and I) differ with Rick: Do you, for instance, think that it would be permissible for a state to promote religious transformation of its incarcerated prisoners, even if only as a means of achieving a beneficial (and otherwise permissible) secular end (e.g., rehabilitation)?

Posted 3:54 PM by Marty Lederman [link]

Comments:

I don't remember the priest telling me when I went to Confession when I was a kid, "Well, Lance, it was wrong of you to disobey your mom and talk back to her like that, but since you set the table every night and do your homework and sent your aunt a birthday card, what the heck! You're a good kid. Your sins are forgiven automatically. No need for you to do any penance." 糖尿病文秘心脑血管高血压高血脂冠心病心律失常心肌病中风糖尿病症状 And maybe it's happened a few times and I haven't heard about it but I can't recall a judge ever letting somebody walk on the grounds the crook was a good guy and his friends really like him.

# posted by

Anonymous : 4:01 AM

Hi Marty -- So, I am going to cheat a little bit, and put aside current Establishment Clause doctrine. And, I also want to be clear about the fact that I would have serious reservations about a project that involved government officials -- prison officials or others -- setting out to accomplish the "religious transformation" of prisoners.

That said, my view remains what it was a year ago, when Marty, Doug, Steve Shiffrin, and I kicked around this topic on Prawfs and Balkinization: Church and State are and must be separate. The freedom of individual religious conscience is a fundamental human right. As a rule, government ought to leave religious development and transformation to non-state actors. That said, and in Marty's words, "the state may advance the view that religious freedom (including the freedom to reject religion) is a civic good in and of itself." And - here is where Marty and I disagree, I take it -- I believe that the government may, consistent with a no-establishment rule, endorse the "view that religious faith is a positive good in and of itself[.]"

# posted by

Rick Garnett : 10:32 AM

Yes, Rick, I think that fairly summarizes our general agreement, and the area of our modest but important differences. Thanks

# posted by

Marty Lederman : 11:18 AM

Rick Garnett:

I believe that the government may, consistent with a no-establishment rule, endorse the "view that religious faith is a positive good in and of itself[.]"

But does such an assertion pass the 'rational basis' test? ;-)

Cheers,

# posted by

Arne Langsetmo : 12:12 PM

"I believe that the government may, consistent with a no-establishment rule, endorse the "view that religious faith is a positive good in and of itself[.]"

uh, doesn't this by definition violate the "endorsement" test? it's hard to imagine that the endorsement implicit in, for example, posting the 10C fails but explicit endorsement passes.

-charles

# posted by

Charles T. Wolverton : 11:45 AM