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"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."

Exactly, but how wonderfully fortunate for the monopolists that lobby for corporate welfare in those industries that the public mind is caught up in that tempest. SBC and Microsoft should send a nice thank you note to the ACLU for wasting everyone's time and energy on irrelevant nonsense.

And the religious lobbies like "Focus on the Family" should quit wasting their money trying to get the 10 commandments tattooed onto the forehead of every student and think about something that might actually stand a chance of helping families... say, feeding them and protecting their jobs perhaps?


"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."

Vouchers will never be available on equal terms. Geography and poverty will always prevent some from using them. At the same time, vouchers will encourage the most affluent and involved parents in the "poor" districts to remove their kids to far-off private schools. That will make the poor schools poorer.

There is a majority in this country that believes in equal opportunity and access to education. Vouchers encourage segregation on class or religious lines, and thus harm equal opportunity.

bob tollison

The alternative hypothesis is that religious competition will be a race to the bottom. Religions will prosper by offering to mimic the existing constraint sets of potential members. Religious strictures will have no bite. Possible test: look at the relationship between a Gini coefficient on participation by denomination and various measures of social behavior and crime. The monopoly church may be able to extract "better" behavior.

bob tollison

Pardon: I meant Herfindahl not Gini.


The "race to the bottom" theory probably does not account for the value people find in religion. If people merely sought a religion to fit their present tastes, behavior, and circumstances, they probably would not choose to be religious at all. Instead, people may seek religion for the value they see in the imposition of a moral code, the appearance of adhering to a moral code, or just social interaction, (or, of course, they may simply believe in it).

If one of the primary incidents of religion is a moral code (whether for adherence or just for appearances), then physical displays of such codes (like the Ten Commandments) may be even less suspect under the Establishment Clause than the actual establishment of such codes through supposedly secular laws (such as the late bans on homosexual sodomy or the teaching of intelligent design), which provide no economic value except the precise value that is unique to religion (moral codes, of course, are not unique to religion, but moral codes serving only supernatural, rather than practical (economic), purposes are).


What are your thoughts on Song of Solomon?


I usually find B/P's thoughts extraordinarily thoughtful, even when I do not agree with them. But on this issue, I believe they boiled it down to simple economics. To subsidize or not to subsidize - that is the question.

But it is actually not the most important one. Let's say for example, that the US did finally recognize an official church but allowed that no taxes would be used to pay for its operations. What might be the repercussions? A million scenarios are possible but it does not take much imagination to think that those outside of the official religion would not enjoy the same rights as those inside. Catholics in colonial Virginia, for example, were not allowed to vote.

Furthermore, laws that were based on the official religion would probably have a greater chance of passing. A Catholic (I am Catholic by the way) state might begin to pass laws limiting divorce, making criminal certain sexual activities such as pre-marital sex and masturbation, and restricting lending practices that were construed to be non-Christian.

But suppose even this scenario did not come true. I still believe that having an official religion leads to alienation of those outside of the faith. This is something that I, personally, would feel very uncomfortable doing to my non-Catholic friends. Remember, it was a Mormon and a Catholic, not athiests, who sued in Texas to have the prayers stopped at football games.

So where does that put us with respect to creches on public property. Well, so far the country has torn itself to pieces via the courts. Interestingly, given B/P's market oriented views, I am surprised that they did not offer up the idea of a contract between activists on both sides. Perhaps something along the lines that a creche is allowed during Christmas in exchange for something else. I understand that there are problems with the idea (who is subject to the contract, is it really legal or is just an understanding, etc) but the law often pushes us into yes/no positions. Sometimes, social harmony comes from people just coming together and working it out without going through the more painful process of the courts. I am not sure we have tried that recently.

anonymous coward

The historical background of the establishment clause includes the concepts of a "gathered" church and an "established" church. A "gathered" or voluntary church is the opposite of an "established" or mandatory church. Generally only one church was "established" in a realm, and that was the church of the ruler.
"Gathered" churches are not discussed in the cases on the establishment clause. By definition, non discriminatory subsidies such as vouchers cannot make a "gathered" church into an "established" church because they would not "establish" one church.

Richard Mason

Becker: As Posner indicates, most of the Commandments deal with ethical issues that would be supported by all groups, and are not really controversial.

Actually, less than a third of the Commandments-- the prohibitions against murder, theft, and false witness-- clearly fall in this category. Unsurprisingly, those three Commandments are echoed by our enforced criminal laws.

But adultery seems no longer to be a fatal embarrassment even to elected politicians, and is scarcely penalized at all among private citizens... and not everybody is in favor of marriage to begin with. Adults are not required to obey their parents and have no legal obligation to them. Blue laws forbidding work on Sunday are in decline and certainly do not have universal support. The prohibition against covetousness is not supported by all groups, such as economists. As for the prohibition against graven images, it is so far from being "not really controversial," that "iconoclastic" is almost an antonym of "uncontroversial."

By the way, couldn't a giant graven image of the Ten Commandments, placed so as to invite veneration in the public square, itself be interpreted as a violation of the Second Commandment?


I think this post demonstrates the severe limits of the law and economics type analysis favoured by Chicago schoolers. I agree that preventing the creation of monopolies is an important social and economic principle. But this commnent completely fails to answer why the constitution only prohibits monopolies being created in one particular "sector", namely churches. Why no constitutional prohibition on any other monopolies? There were certainly examples of other state-favoured monopolistic behaviour and its detrimental effects (see british east india and other types of royal charter companies).

The real reasons for the separation of church and lie completely outside the field of neo-classical economic thought and ex post explanation like this (which are very common in the law and economics writing) barely pass the laugh test.


Ugh, please pretend I had proof read that before I hit the post button.


I think all religions need the protection of state to survive, that is a natural path and all do it, other wise it would be just someones view. Here is my point: Look at the way people in General react to jumping on couches?
People have aright to there believes, as that is what makes there world go round. They all have there way to spirituality Either thru believe,prayer, meditation, chanting or auditing. We know they all work as you are putting something in your mind, and then it comes about. The debate is on how? We have to know that thought and intention is not Physical and until we understand that, will it be a Science.(I personally think Thought , intention and you [a spirit] are in a different demension
and are out side the scope of Science that can only view this physical demension, so will never have the answers). So Religions fill in that missing why for people. People must know they have the truth.
The mind must always be right. It has a mechanism that must evaluate everything on that percieved Why. When man understands that Perception can be raised, and conciousness comes from the level of thinking or level of knowing, that mechanism can be bypassed If coming from just knowing. That is a spiritual quality What ever means they achieve it.
The point with Tom Cruise and Jumping on couches can be looked at as crazy, till you realize how you would act if you just found out you just won a million, would that be crazy or just a super high level of excitement? Finding the right Mate finally could generate as much excitement as winning the lottery...What has that got to do with ones sanity? Religions or science is ones stable datum on his sanity.One has a right to it, so must be protected, I think..


"Gathered" and "established" churches alike are responsible for thousands of Elmer Gantrys in our society, and billions in "church" property which is exempt from taxation, making others pay more. And many Gantrys are personally skimming heavily on the collection plate--real parasites. I think the whole industry has a bad odor, and provides more than one avenue for anti-social behavior. My solution would be to put all their property on the tax rolls forthwith, and then let them do anything they like, including erection of tablets and planting of creches on public property, so long as riots do not ensue, and certainly operating private schools they believe in, including secular ones, with per pupil subsidies from the government, provided only that student testing in basic "three R's" is satisfactory. Since government run schools are inherently uneconomic, the per pupil amount for private schools might best be set at one-half the amount of government schools in the same vicinity, which would be ample to make the private schools fully competitive--and likely profitable.

Bernard Yomtov

I agree with Jeremy that looking at this issue solely through an economic lens is ridiculous. Yes, monopolies are generally undesirable on economic grounds, but I don't remember Ma Bell, back in the old days, actually murdering its critics.

To think of this issue in terms of competition and the like is absurd. Is it Becker's claim that the purpose of religious freedom is to compel religions to become more efficient? There are important matters of freedom of conscience that simply do not fit into that framework.

Jack Sprat

"There are important matters of freedom of conscience that simply do not fit into that framework."

Right. This is basically it.


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