August 15, 2005 to August 21, 2005
Religion and the State
The Ten Commandments Cases--Posner
In two much-anticipated decisions rendered by the Supreme Court just before it recessed for the summer--Van Orden v. Perry and M* cCreary County v. American Civil Liberties Union of Kentucky*--the Court was asked to decide whether the display of the Ten Commandments on public property is a forbidden "establishment" of religion. The First Amendment forbids Congress to make any law respecting an establishment of religion--that is, it may not create an established church, such as the Church of England, or the Roman Catholic Church in Italy. The displays at issue in the Court's two cases were on state, not federal, property; but the Fourteenth Amendment has been interpreted, questionably but conclusively, to make most of the provisions of the Bill of Rights, including the establishment clause of the First Amendment, applicable to state and local action.
In the Van Orden case, the Ten Commandments were inscribed on a monument on the grounds of the Texas State Capitol. The grounds were sprinkled with monuments of diverse character, including monuments dedicated to the Texas Rangers, the Texas Cowboys (the football team), the Heroes of the Alamo, Volunteer Firemen, and Confederate Veterans. The Ten Commandments monument had been given to the state 40 years earlier by the Fraternal Order of Eagles, at the suggestion of Cecil B. DeMille, who was promoting his movie* The Ten Commandments*; and during this long interval, no one had complained about the monument until Van Orden. The Court held that the display did not violate the establishment clause. But in the other case,* McCreary*, where the Ten Commandments were displayed in a Kentucky courthouse, a differently composed majority of the Court held that the display did violate the clause.
I want to begin by considering from the ground up as it were, as a speculative exercise unrelated to the legalities, why a legislature should be forbidden to establish a church. That is, suppose a large majority of citizens belong to a particular sect which they naturally believe has the truest understanding of religion. What more natural than that they should try to embody their belief in law by pressing for legislation that will "establish" their sect as the "official" religion of the state or nation by imposing a tax to finance it? Of course the people who do not belong to the sect will not want to pay such a tax, but many government expenditures offend numerous citizens--think of all the people who oppose the war in Iraq; they nevertheless are taxed to support it.
It might be argued that being forced to support a religion one doesn't believe in is peculiarly offensive. But, if so, a law to establish that religion would be unlikely to be enacted. Minorities with strong feelings about an issue regularly prevail in legislative battles--think of all the laws that are passed forbidding discrimination against various minorities.
In fact, there is such religious pluralism in the United States that probably in no state except Utah could a law be passed establishing a particular religious sect even if the establishment clause had never been held applicable to the states. Almost all establishment-clause cases involve efforts to "establish" religion in general (versus nonbelief), monotheism, Judeo-Christian monotheism, or Christianity. These efforts take such forms as making time for voluntary prayer in public schools, encouraging public school instruction in "intelligent design," providing public funds for secular education in religious (mainly Catholic) schools or for the display of the creche during Christmas, or, as in the two recent cases, displaying religious materials on public property, usually without cost to the public--it is easy enough to obtain donations of such materials, as in the case of the Ten Commandments monument given Texas by the Fraternal Order of Eagles at the suggestion of DeMille.
Some of these efforts are held to violate the establishment clause, others not; there is no discernible pattern or crisp legal standard. From a purely economic standpoint, it seems to me that the case for permitting such "establishments" should turn on whether the likely effect is merely to offset some subsidy for secular activities. Obviously the fact that the public schools are "free" to the parents, being supported out of taxes, places religious and other private schools at an arbitrary disadvantage, so there is nothing wrong (remember I am speaking only of the economics of the question) with providing a comparable subsidy so that parental choice will not be distorted.
The subsidy of secular activities is more subtle in the case of public display, but it is nonetheless present. Suppose that at Christmas time the public grounds display only secular aspects of Christmas, such as Santa Claus, and refuse to display a creche; then religious Christians are denied the same free opportunity to advertise, and enjoy seeing, their version of Christmas. Similarly, suppose the Texas State Capitol welcomed a large variety of secular displays (as indeed it does) on its capacious grounds, but refused to permit a religious display; this would give a cost advantage to secular displays because they would be free both to the sponsors and to the viewers.
Some people are offended by any religious display; but given the nation's religiosity, probably more people are offended by the banning of all religious displays from public property, which they interpret as sending a message of hostility to religion in general or to the dominant Judeo-Christian monotheism in particular. The case against requiring the teaching of "intelligent design," a thinly disguised version of Biblical inerrancy, is stronger because it confuses religion with science and weakens Americans' already dangerously weak scientific understanding. An individual is entitled to reject science, but he should be taught it, and the teaching of science is impaired if religious dogma is treated as a form of science.
If secular activities are not being subsidized, I don't think there is a strong economic case for religious subsidies any more than for other private goods. It is possible to argue, however, that subsidizing displays of the Ten Commandments does create value in an uncontroversial sense, because they are primarily understood nowadays as an ethical rather than religious statement. The government is permitted to "propagandize" on behalf of uncontroversial moral principles, and the Ten Commandments contain arresting statements of some of those principles, such as "Thou shalt not kill." The complication is that some of the commandments are sectarian, such as the injunction to worship only one God.
Although atheists are in the forefront of litigation against alleged establishments of religion, there is a powerful argument first made by David Hume and seemingly illustrated by the state of religion in Western Europe that an established church weakens rather than strengthens religious belief, and, a closely related point, that rather than fomenting religious strife (a concern of the framers of the Constitution) it induces religious apathy. Hume thought that religious officials paid by government would act like other civil servants, a group not known for zealotry, because they would have no pecuniary incentive to make coverts or maximize church attendance. That is a good economic argument: if you are paid a salary that is independent of your output, you will not be motivated to work beyond the minimum requirements of the job. A less obvious point is that a public subsidy of a particular church will make it harder for other churches to compete. The result will be less religious variety than if the competitive playing field were equal. A reduction in product variety (with no reduction in cost) will reduce demand for the product.
This point is less compelling than Hume's, because of offsetting considerations. The subsidy may stimulate demand for the established church by reducing the quality-adjusted cost of attending it--suppose the subsidy is used to build magnificent cathedrals or hire outstanding organists and choirs. The increased demand for the services of the established church may offset the lack of religious variety. Moreover, if the subsidy causes the officials of the established church to become indolent, this may offset its cost advantage and facilitate the competition of other sects.
Empirically, however, it does seem that established churches do not increase, and, judging from the experience of most though not all European countries (Poland is a major exception), probably diminish religiosity, consistent with Hume's analysis. However, his analysis is probably inapplicable to the attenuated forms of establishment that are all that are feasible in a religiously pluralistic society such as that of the United States (of course it may be pluralistic in part for Hume's reason). A public display of the Ten Commandments is a far cry from a state-salaried minister, so far as the impact of public support of religion on proselytizing is concerned.
Comment on the State and Religion-BECKER
I will follow Posner and try to discuss the general principles concerning the State and religion rather than the details of these Ten Commandment cases. To me, the overriding reason why the State should not make any law respecting the establishment of religion is the case for competition and against monopoly. Competition allows for entry of producers, including new religious ideologies, such as scientology and bahaism, or new forms of atheism, that cater better to the preferences and needs of people, be they spiritual needs or materialistic ones. Monopolies restrict entry, and hence preclude the entrance of producers with new ideas, including religious ones.
Throughout history, religions have tried to use the State to give them a privileged and protected position, and in this regard have been no different than telephone companies and airlines that have used government power to keep out competition. This use of the State to foster particular religions is found in many Islamic societies that subsidize teachings and practices of Islam, the Israeli State that subsidizes Judaism, or some Christian nations that use taxes to pay the ministers' salaries. As Posner recognizes, many other groups also succeed in getting the State to support their activities, but two wrongs do not make a right. Governments should not support particular religions, or other groups that feed off the State.
Competition usually increases the demand for a product compared to monopoly. As Posner indicates, this is one of the arguments Hume made against State-supported religion. Adam Smith in the Wealth of Nations made a similar argument, and a quantitative study by Lawrence Iannoccone tested Smith's claim. He found some support for the conclusion that religions flourished more when competition among religions is greater. The US stands out in this regard, for it has several thousand "different" religions competing for members, and it is more religious than other wealthy countries. However, fundamentalist Islamic countries and Christian countries like Ireland and Poland do actively support a particular religion, and they also have relatively high participation in religious activities. So they are counterexamples to the Hume-Smith-Iannoccone thesis.
Moreover, as Posner indicates, large state subsidies to one particular religion could lead to greater demand for religion than in an unsubsidized competitive environment. That is why I believe the case for free competition among religions comes mainly from competition providing opportunities for new religious belief systems, including atheistic beliefs, to cater better to people's desires. To repeat, the case for competition among religions is the same as the case for competition in other industries: to allow entrants with different ideas and points of view to compete for consumer time, money, and other support without any government favoritism.
I support government-financed school vouchers for various reasons that I have discussed elsewhere. That includes support for vouchers for religious denominated schools, as long as they are available on equal terms to all groups, including explicitly atheistic ones. The State does have the right to exert control over the curriculums of schools taking government aid in one form or another. This control can include sharp limits on how much time a school can spend teaching religious doctrines, including doctrines against organized religions.
I am not competent to discuss the legal aspects of the two Ten Commandment cases, but where does this analysis of the case for competition and a level playing field among religious doctrines come out on the issues raised by these cases? As Posner indicates, most of the Commandments deal with ethical issues that would be supported by all groups, and are not really controversial. Those that are sectarian--say to worship only one God--can be opposed on grounds that they support certain religions against atheistic groups, or even other religions. Consequently, I believe the principle of a level playing field argues against allowing religious displays, and many of the other displays on public property mentioned by Posner and in the Court's decisions. Still, these displays, including the Ten Commandments, are far more innocuous then the many laws that give monopoly powers to telecommunication companies, domestic airlines, farm products, and various other industries. So relative to the harm caused by laws that rig the playing field in these industries, the extensive agitation over the display of the Ten Commandments seems like a tempest in a teapot.
Response to Comment on the State and Religion-BECKER
Not many comments, so my task is much easier than Posner's. However, the comments are of high quality even though I disagree with most of them.
I am surprised by the claim-especially given who wrote it- that competition among religions might lead to a "race to the bottom". Why should that be any truer for religion than for competition among cars or telecommunication companies? What is known is that competition among religions increases the degree of religiosity (measured in various ways), and that more religious persons are more law-abiding, more honest, and so forth. However, it has been difficult to determine whether religions improve behavior rather than that more law-abiding and honest families are more likely to be religious. The little good evidence on this suggests some causation from religion to better behavior.
Several persons misunderstood me on one major point, and I apologize if I did not make myself clear. When I speak about free competition and a level playing field among religions, I was not simply referring to government monetary subsidies. To take the example provided in one comment, it would violate the concept of free competition if the government only allowed Catholics to vote. Free competition and level playing field should apply to all areas of government involvement, such as who votes, who can run newspapers, who can set up denominational schools, who can open churches, etc.
A closely related misunderstanding is that I have never advocated competition among religions, newspapers, or anything else, solely on a mechanical notion of "efficiency". The case for competition is that it better satisfies and influences people's preferences-in effect, that it gives them greater choice. This case for competition applies just as strongly to religions, political parties, and other non-material activities as to the markets for clothing or computers.
Someone questioned whether the Constitution prevents the establishment of an official church because of the desire to allow competition among religions. I do believe that was a crucial consideration. For support, one only need read Thomas Jefferson's Bill for Establishing Religious Freedom in the State of Virginia. Much of what he says there in making the case for religious freedom is best interpreted as showing the advantages of allowing different religions to compete for members on a level playing field. The Constitution also outlaws monopoly in a few other areas as well. The first of the Bill of Rights states that "Congress shall make no law respecting an establishment of religion…or abridging the freedom of speech, or of the press". These are all arguments against monopoly and for free entry into the print world and the world of ideas as well as religion. Free entry is really all that competition means. One would not expect a blanket condemnation of monopoly because the founders might well have expected cases of "natural" monopoly;that is, cases where competition would not be efficient or feasible.
I accept the criticism that several of the Ten Commandments might not now be accepted by everyone. Still, my main point is surely right, that allowing a display of these Commandments on public property is minor compared so many other activities that governments engage in.
I definitely agree that property owned by religious institutions should not be tax-exempt. My reason is not that this discriminates against atheistic groups since they can have non-profit organizations that would also be tax-exempt. My main reason is that I am generally doubtful about the tax-exempt status for all non-profits, including, but not confined, to religious groups.
This is a bit off the topic, but I cannot let pass the claim that vouchers would drain the good students from public schools, and would leave the students who remain there much worse off. The true situation illustrates how competition works. Schools that lose students to better schools would be under great pressure from parents and others to improve themselves. They would tend to get new principals, change their teaching, etc. This is not just theory, for it is backed up in the studies by Carolyn Hoxby of Harvard and others.
The Ten Commandments--Posner's Response to Comments
It is not easy to respond to 160 comments; I can only discuss a handful, concentrating on the recurrent ones. But I must begin with an apology to sports fans for confusing "Texas Cowboys" with "Dallas Cowboys." The monument on the Texas State Capitol grounds is to the state's cowboys, not to the football team. My profound ignorance of sports stands exposed, and in some quarters my Americanism will now be questioned.
While I am being defensive, let me respond to the comment about "one of the quirkier Posner opinions of all time. Have you ever wondered what water skiing in Hawaii had to do with the establishment clause?" The opinion, Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995), is actually quite straightforward. The issue was whether Illinois had violated the establishment clause by making Good Friday a public school holiday. Christmas is of course a public school holiday, so the issue narrowed to whether there is a difference. The difference, which is important to the Supreme Court and so has to be to me as a judge whatever my personal views, is that Christmas has become so far secularized that making it a holiday is not widely interpreted as signifying governmental endorsement of religion or Christianity. Good Friday, it turns out, has not become secularized--except maybe in Hawaii, where it kicks off a spring holiday weekend. I emphasized in my posting that I was going to discuss the economics of the establishment clause, not the legalities, so I'm a little surprised at Professor Rubin's accusing me of trying to impose an economic understanding on the clause.
There is a lively debate in the comments over the issue of "incorporation"--was the due process clause of the Fourteenth Amendment (ratified in 1868) intended to incorporate the Bill of Rights in the sense of making them applicable to the states? The historical evidence is conflicting, but the proposition seems so implausible on its face that I would require a much clearer showing of the historical understanding to be convinced. Apart from the textual objection--the Bill of Rights includes a due process clause, so what literal sense can it make to say that the due process clause in the Fourteenth Amendment incorporated that clause and everything else in the Bill of Rights? But worse is the assumption that everything that Congress is forbidden by the Bill of Rights to do makes sense to prohibit every state, city, and village to do. That is so mechanical, so insensitive to different responsibilities of different levels of government.
But all that is water under the bridge, given that only Thomas among the current Justices questions the incorporation doctrine.
The bulk of the comments concern two issues that were remarked only in passing in my posting. One of these concerns my allegedly "snide" reference to "Intelligent Design," the anti-evolution theory now gaining traction in the nation's schools (there was an article on this in the New York Times this morning). I said it was a thinly disguised version of Biblical inerrancy. That statement was inaccurate, because as was pointed out in one of the comments not all adherents to ID believe that God created the universe, man, etc. in the mannner described in the Bible. However, it clearly is a religious conception, because "intelligent" design implies a designer, and what would you call such a designer but "God"? However, even if it is not a form of fundamentalist religion, it doesn't, in my view, belong in school. It is one thing to note problems with Darwinism, and to discuss the interesting question whether any theory can be truly scientific if it cannot be supported or falsified by actual observations, but it is another to teach, as the IDers want to do, that there are these competing theories, evolution and ID. ID does not have the structure of a scientific theory, there is no evidence for it, and there is no way to obtain evidence for (or for that matter against) it.
The other issue, peripheral to my posting but obviously not to the commenters, concerns school vouchers. There were many interesting comments, and it is an issue to which Becker and I should probably devote a future posting to. The place to begin in thinking about the issue is with the difference between the state's mandating and subsidizing a service, on the one hand, and providing the service itself, on the other hand. The government can require that children be vaccinated and pay for their vaccination without manufacturing vaccines. Similarly, it can require that children attend school and pay for their schooling without operating schools, something it doesn't seem to be particularly good at; politics and teachers' unions drive up costs and drive down quality. The government would have to impose minimum standards on all voucher-supported schools, as it does now on private schools, but that is different from ownership and control. The government used to regulate railroad rates, but, unlike the practice in many other countries, it did not own the railroads.
A voucher system is a first step toward privatizing education. Means-tested voucher entitlements would enable parents to select a school even if they had no private means. Many rich people would continue to send their kids to fancier schools than vouchers would pay for, but that would be no different than under the current system of public and private education.
To return to the subject of my posting, I think it would be a great mistake to confine vouchers to secular schools, whether public or private. Catholic schools in this country have a good record and provide a type of education that is highly suitable for some children. Most of the education provided in Catholic schools is secular, and the amount of the voucher could be limited to the secular component.