Judge Karlton's concurrence in Faith Center Church (see also the post below) argues — right after concluding that "religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech":
Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion. Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power.
So far so good, though it's not clear how giving religious groups the same access to free library meeting groups that secular groups have — or giving religious groups equal access to a wide range of evenhandedly distributed benefits, such as nonprofit status, the charitable tax exemption for donations to charitable groups, and more — involves "marrying [religious] passions to government power." The judge goes on:
That threat is not merely historic. One need only look about the world to see that danger in play. The scenario is the same whether it is in Northern Ireland where Catholics and Protestants kill each other in an effort to establish governmental power, in Israel, where Jews and Muslims do the same, in Iraq, where Shi’a and Sunni are engaged in similar slaughter, or in Sudan where Muslims murder Christians. Nor is that the only danger.
Again, it's not clear that evenhanded treatment of all religious groups alongside secular groups in access to government benefits has much to do with conditions that lead Catholics and Protestants to kill each other. Likewise, when the judge goes on to say, "Where government plays a role in the religious life of a pluralist society, there is the danger that government will favor the majority religion and seek to control or prohibit the rites of minority religions. Such favor can only lead to alienation and social unrest," I can't see how a rule of equal treatment for all religious groups alongside secular groups would create such a danger.
But then the judge moves on:
The wall of separation between church and state that Thomas Jefferson thought the First Amendment raised, in no way prejudices the practice of anyone’s religion. Instead, it serves the salutary purpose of insulating civil society from the excesses of the zealous. The Good News Club and Lamb’s Chapel majorities’ disdain of the Jefferson model is premised on the belief that religious values enhance rather than endanger society. The legal issue, however, is different. It asks whether one can distinguish between religious speech in a categorical way, and the answer is yes. Of course there may be close cases. Such cases require the development of a delicate jurisprudence designed to protect the Establishment Clause while insulating religious practice from government intrusion.
So the judge has no hostility towards religion, but "the excesses of the zealous" — apparently just the religiously zealous — are something that must be avoided even by discriminatorily excluding religious groups from the benefits available to comparable secular groups.
The issue is not, contrary to what the judge argues here and earlier in the opinion, "whether one can distinguish between religious speech" (which I take it means "between religious speech and nonreligious speech," especially given the other quotes I give immediately below), nor is it about "the High Court's purported inability to distinguish betwen a sermon and a speech" or "[t]he purported inability of the High Court to adhere to the distinction embodied in the First Amendment" between religious speech and nonreligious speech, nor about the Court majority's supposed "doubt about the ability to distinguish between religious practice and secular speech." While the majority opinion does turn on whether courts can consistently distinguish (without undue side effects) between religious worship and other religious speech, of course the courts could distinction between religious speech (such as sermons) and secular speech.
The question is whether courts ought to draw such a distinction, in a way that strips religious speech of the same Free Speech Clause protection that secular speech has, and thus discriminates against religious speech, in order to somehow "insulat[e] civil society from the excesses of the zealous." It seems to me that if one really wants to avoid "hostility towards religion," equal treatment of religious speech and nonreligious speech — regardless of what one fears from the "zealous" — is the proper approach.
Related Posts (on one page):
- No Hostility to Religion Here! We Just Need to Discriminate Against Religious Speech To Insulate Society from the Excesses of the Zealous:
- Government Must Exclude Religious Speech from Government Property, Writes Federal Judge