"A blanket ban on mention of God in government-controlled spaces does not automatically align with “the free passage of true religion” that Williams thought was a legitimate concern of civil government, nor allow opportunities for the “reverent esteem and honorable testimony” for religion that he favored."

I understand that interesting writing requires the use of colorful rhetoric at times, but this is not an accurate characterization of First Amendment case law. In fact, it is the complete opposite of the actual legal standard. Far from a blanket ban on religion being in effect, if students or a private group had put up such a banner on their own in an equal opportunity manner, then the school would be prohibited from removing it due to its religious content. Schools are also prohibited from preventing students from praying, preventing bible study on school grounds, or preventing students from speaking freely about God. The only thing not allowed is some kind of official public endorsement of religion - which the banner clearly was. Of course, public officials are still free to express their personal views on the subject with students in an unofficial capacity.

Why government "needs" to be or "should" be a pusher of religion and it cannot simply be done privately, I will never understand. Another of the many differences between libertarians and conservatives.

I was using government-controlled space, emphasis on the control, in the sense of a place where the government directly decides what will be displayed or expressed, but I concede that the term can lead to some ambiguous cases, especially where the government opens up a space for non-governmental groups to use.

Neither government officials speaking unofficially nor students are government controlled spaces, so what they can say on their own is not at issue.

That said, the courts have created a system that allows the banner for some metaphysical possibilities (some of which are listed in the main post) but not others. An anthropomorphic God is definitely out, but other higher powers might be allowed. Whoever is right in the end, that dichotomy is an inhibition of religion.

Under current Supreme Court "law" the banner must go.
Can we please stop giving this scummy family of self promoting grifters the attention they are thriving on?
Let's meditate on the fact that if we abolished the NEA/AFT schools in favor of a voucher system this problem, along with the exponentially expanding costs, go away. Permanently.
Think about it...

Dan,

As far as I can tell, the difference between conservatives and libertarians on this particular issue is that conservatives believe that a small civic unit like a town ought to be able to be self-governing enough to decide that a benign prayer banner may be hung in the high school.

Libertarians believe that their vision of government must be imposed in a blanket across the nation.

"Libertarians believe that their vision of government must be imposed in a blanket across the nation."

That's a riot. I could make a fairly appropriate comparison to "freedom is slavery" doublespeak, most often employed by progressives justifying use of force toward their own ends. The real libertarian position is to privatize schools so that this won't be an issue in the first place. But assuming the situation at hand, I think your idea of who is coercing whom through government is a bit reversed. Conservatives are the ones pushing affirmative government action in this scenario - the erection of a religious banner by public employees in their official capacity to be specific. Libertarians are advocating against the use of government in this manner and prefer a neutral stance by the state that neither advances nor restricts religious expression by private parties. In other words, we want a world in which nothing is "imposed" on anyone except a prohibition on "imposing" on others. That is the liberty-oriented position.

I still don't understand why government "has" to be involved in such a private matter as religion. Are you afraid that the ideas can't succeed on their own merits?

It has a familiar ring to it! Kinda like saying...

Give us this day our daily bread, and forgive us our trespasses as we forgive those who trespass against us. And lead us not into ttemptation, but deliver us from evil.

Sounds great, but lacks a purpose greater than mere peaceful coexistence.

Dan,

You need to be more precise. "Conservatives" are not "the ones pushing affirmative government action in this scenario." The banner is there. It was put there when one didn't have to be conservative to have affinity for it. The "affirmative government action" is to force its removal. (And wasn't the banner a production of a student, not a "public employee"?)

Increased precision ought also to apply to the synonyms you use for "government." As it happens, I'm for a "neutral stance" on the question of Cranston's prayer banner from the state and, more to the point, from the federal government. If the city wishes to preserve an item from its religious history on a school wall, I'm not sure why the voice from Virginia ought to presume authority.

To rephrase and restate it, the problem with libertarians is that their list of liberties doesn't include actual self government — of the kind that allows communities to govern themselves in ways that libertarians disagree with.

Justin - The timeline of events isn't important to the principles involved in this case. It doesn't matter whether the banner was already there, is being planned to be put up now, or was put up, taken down, put up again, etc. - the discussion is over whether the school putting up an overtly religious banner in its official public capacity is a proper function of government.

In a sense, I don't particularly *care* what Cranston wants to do religious-entanglement-wise since it doesn't affect me, but we're talking about what is moral here. I don't feel this is a proper function of government, philosophically speaking. In a sense, I support the right of people to make "bad decisions" in self-government, but I also feel for the non-religious who would have no choice but to be represented by a religious endorsement against their will.

The discussion should be about more than just the propriety of the Cranston School Committee's maintenance of a banner reflecting religious ideas. A far more important question is the propriety of the courts' interference in that discussion. The courts derive their legitimacy from the law. If there is nothing in the federal or state constitutions that pertains to the banner, then Lageux has overstepped his boundaries in forcing its removal. Exercising power without legal authority is the very definition of tyranny. It is shortsighted indeed to pursue libertarian objectives through despotic means.

Ah. Sympathy for the "non-religious" (which term applies only dubiously to activist "avowed" atheists) who must endure the presence of a reference to God on school property... which their personal tax dollars never subsidized... but not for religious people who've been told by the federal government that such a banner cannot exist.

As you assess your feelings for people living under government regimes with which they disagree, perhaps you should consider the process of addressing those discomforts. Absent the judicial tyranny at the federal level, the atheist can move one town over, attend a different school, petition his or her neighbors to remove the sign, or seek some other compromise within the specific community in which he or she lives. Assuming the Supreme Court would uphold Lagueux's decision, in the system currently imposed, the religious would have to enact a Constitutional amendment at the federal level in order to keep the banner. That's quite a different bar to making one's community one's own.

Your use of the phrase "in a sense" doesn't disguise the fact you're less uncomfortable with government imposition of ideology when it's one you share. As I've said before, libertarianism is a particular worldview masquerading as high principle.

Similarly, the notion that the timeline doesn't matter is little more than a convenient assertion on your part. In every sense, action is different than inaction. But pretending that current law somehow applies throughout history as a transcendent principle beyond time allows the erasure of our heritage, a preference that some libertarians apparently share with the Soviets.

David and Justin - I've explained many times that I feel the Constitution should be more explicitly protective of individual liberties from government intrusion than it is. The original idea was that enumerating a long list of liberties would lead to them being exclusive, but we now know that what was not explicitly included is quickly forgotten in the sands of time. So now what we have is a short list of liberties left and activist judges all over the f-ing place, doing some things we like and a lot we don't like. This is in the category of one of the things I like. There are plenty I do not like, such as Federal drug laws based on a completely bogus construction of the Commerce Clause. If we look at the plain language of the Constitution, we clearly see that this type of thing is not prohibited - I just think it should be, objectively speaking.

Justin - In either scenario, we are still talking about a specific affirmative action taken by local government. Whether the action is evaluated ex post or ex ante is irrelevant to the merits of the action. I am surprised that somebody as intelligent as you is struggling with this basic concept that any judge - liberal or conservative - would agree with. Saying that taking the banner down is government imposition is like saying that shutting down HUD would be taking an affirmative government action and thus anti-libertarian.

I gave some of these topics more thought during my walk this morning. Justin, you raise an interesting issue about local autonomy. You seem to be saying that the smaller a government unit is, the more autonomy it should have about pretty much anything, including freedom of religion, etc. This is not how the United States government is set up, even in an Originalist sense, but that doesn't mean that it is wrong. In fact, it is a view to which I am somewhat sympathetic.

Let me pose a simple thought experiment to flesh this out:

The next Providence election cycle is held and progressives realize their wildest fantasy - the Progressive Workers Party wins 68% of the vote. Progressive politicians sweep into office on all levels of municipal government and start making BIG changes in the name of "social justice." Walsh is installed as the all-powerful Chairman of Ministers, Crowley is appointed head of (Forced) Labor, Frymaster is appointed Minister of Central Economic Planning, and Liedecker controls the Stasi-like Cyber Intelligence Bureau. First action-item is seceding from the "facist, corporatist, racist" United States. Enemies of the People (for-profit businesses and conservatives) are given 15 days to leave, and then the barbed wire and checkpoints start going up. Some flee, some stay in the only homes they've known. We start hearing rumors of bad, bad things going on inside those walls. Cries for help are posted online by residents periodically, only to be quickly taken down under the pitch black dark of night, unadulterated by the anti-environmental light of modern technology.

Where libertarians and conservatives can agree is that what is going on in this 1984 city-state is "bad" in a philosophical sense. My libertarian impulse is that coming to the defense of those people might be justified, but practically speaking, it is better to let it starve and collapse under the weight of its own inefficiency and hypocrisy and free societies will be proven superior. Most conservatives, I think, would be gung-ho about storming the gates as their duty to spread freedom to every corner of this world, so I am surprised to hear you talk about local autonomy (Do Iran and Iraq have local autonomy as well?). In other words, where do you draw the lines on the ability of entities to self-govern?

John,

I understand your point. My proposed response also takes into account one item that I did not mention, the Supreme Court’s recent denial of cert in the Utah roadside memorials case, where the endorsement factor was arguably significantly weaker. Based on that, I am skeptical that the Lemon Test and its "reasonable observer" who is hypersensitive to any mention of religion is going to be changed as a result of the Cranston West case.

That leaves options of:

1. Appealing the case anyway, which is a roll of the dice at best, with odds against winning.
2. Removing the banner completely.
3. Modifying the banner.

David,

The legal answer to your question is long and winding (and not 100% guaranteed to be satisfactory), but the short version is that Section 1 of the 14th Amendment to the Constitution applied the limitations in the Bill of Rights to the states as well as the Federal Government...

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.

If you're interested, we discussed this issue a few years ago, when the courts had to decide whether the 14th Amendment extended the 2nd Amendment to the states or not. bit.ly/w0DufA

Dan,

Let's look at a first step in your government takeover. The hypothetical government puts up its own version of the Cranston West Banner in its schools, but with the first line replaced with 3 new ones:

"So that we may fulfill our highest civilized duty,
and become the best tax-revenue producers for the state that we can,
We ask for a cultural superstructure on top of a material base that will..."

The hypothetical powers that be also make students recite this before class each morning.

Under the way the courts have applied the law so far, this would be acceptable, but a single passive mention of God is not. Religion has been burdened in a way that other belief systems are not, which is a violation of both the spirit and the letter of the Lemon test.

That's a fair point, Andrew. One might raise the question of why religion is treated differently in the Constitution than any other form of speech, expression, or ideology. I don't think the Framers, or whatever you want to call them, got quite that philosophical in their analysis. It was probably because religion was seen as something fundamentally different at the time, or at least a special subset of expression due to the long and troubled history that religious entanglement with states has caused in the past. The Church of England was likely fresh in their minds.

I agree with your basic analysis. I'm certainly no fan of coerced loyalty pledges and the like, and we know from Marxism and Fascism that political ideologies can be every bit as dogmatic as religious ideologies. But one can't say that the Constitution is more consistent on the issue, because it makes the same perhaps unprincipled distinction.

Dan,

I'm not struggling with any concepts whatsoever. I'm just not making an argument within the law, but about the law.

The banner is there. Absent an instruction from somebody with the authority to issue it, the banner will remain. What the judiciary has done is to rig our legal system so they may issue compounding, evolving edicts that allow them to possess that authority. Note that the banner was well within the law at the time that it was created and posted and that there has been no Constitutional amendment passed since then to change that legality.

What legal types have done is to present the law as this transcendent abstraction that only they have the authority to interpret and that applies retroactively whenever they manage to implement the precedent to impose their preferred policy.

----

Regarding the hypothetical takeover of Providence, I'd note that the Constitution does guarantee a representative form of government. I'd also note that the Constitution is absolutely in accord with my view of smaller governments having more leeway to hew to their constituents preferences. The founding document clearly leaves room for the states; that it doesn't force the states to pass the principle down to municipalities doesn't mean that it wasn't a principle implicit in the legal structure that it set up.

As for the line on local government, my rule of thumb is very simple: All residents must be able to change their government (right to vote, etc.), the right to work to change government policies (rights to speech, property, etc.), and the right to leave. Within that framework citizens can strive for the flavors of government under which they wish to live. There's plenty of room for debate and further line drawing, but that's my basic guiding principle.

------

Regarding your response to Andrew: You can't have it both ways. You can't posit atheism ("freedom from religion") as a protected belief system and then draw a distinction between atheistic ideologies and religious morality.

The reason the framers singled out religion as inapplicable for federal establishment or restraint from the federal government has always seemed pretty clear to me: Religions tend to have their own structures, with their own laws and their own hierarchies (no matter how loose) of people authorized to opine on matters of behavior. It is therefore eminently advisable to allow the federal government to "establish" a religion such that it can impose its own laws and authority structure on those whose allegiances lie elsewhere. (It's important to note the difference between this sort of establishment and the ability of voters to follow the civil processes available to everybody in order to shape the law in accordance with their religious beliefs.)

In that context, it can hardly be argued that other ideologies (Marxism et al.) do not qualify as religions. This includes libertarianism, especially legalistic libertarianism.

Andrew,

Even if the Fourteenth Amendment can be said to have applied the Establishment Clause to the states, it can't be plausibly asserted that the Cranston banner constitutes an establishment of religion. The Supreme Court recognizes this. That's why, with no authority whatsoever, it changed the standard from "establishment" to "endorsesment." I wouldn't dispute the fact that the collection of Supreme Court cases that passes for Establishment Clause 'jurisprudence' most likely requires the removal of the banner. I would argue that courts long ago abandoned any pretense of fidelity to the Constitution. Where the courts' rulings clearly conflict with the plain meaning of the Constitution, we should stop pretending that those rulings represent anything other than a naked power grab.

A MOUSE one day found his way to the Fountain of knowledge. Whoever drinks from it may have his heart's desire and one extra wish.
The mouse drank, and he wished that he could understand the speech of men, if men had speech. When he had spent some time listening to what men said he used his extra wish to banish his new power.
The other mice said to him: 'What was so horrible about the speech of men? At first he could not bring himself even to think of it again, but they pressed him so much that he said: 'I do not think that you will believe me, but what I say is true. Men actually imagine that God is like them, with human, not mouselike, attributes!'

The mouse audience was shocked to the core. When some intellectuals among them had recovered their indignation, they asked: 'But are there none who think otherwise?' 'There are some, but their theories are as abominable as the rest. 'Tell us, just the same,' clamored the thinkers, so that we may have the fullest information on this amazing matter.' 'Well, then; for instance there are those who imagine that religious terms are in reality derived from states of mind. 'Enough!' cried some of the assembled mice, 'such insanity could cause an epidemic of madness. Even the Mouse-god might not be able to protect us from it.' 'Enough!' exclaimed others, 'for this might give mouseolators a chance to revive that nonsense called religion, pretending that it has a functional origin.

I told you all at the beginning that it was horrible, said the mouse who had found his way to the Fountain of Knowledge.

The Magic Monastery, Idres Shah, pp 88-89.