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 McCreary 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.

Comments

[Bill Korner]

I'd emphasize Posner's implicit view that U.S. science education, particulary in evolutionary biology, suffers from lots of things besides (though, I would add, perhaps related too) the well-known religious controversies. And, while REQUIRING teaching intelligent design as science is obviously a bad idea, the question of how schools will teach the relation between science and religion is at least as hard a question as (though very different from) deciding how they will accommodate the varying prediclictions of their students/their students' parents regarding religions. Debates about funding have to handle the former question to. Unhappily, we could easily wind up with poorer science education as a result of equally funded religious education.

These are two of the most insightful posts I've seen on this blog and I say that as someone who's profited from about everything I've read on it.

[nate]

> Are ideas in "tragedy of the commons" at all applicable to education?

Can you be more specific?
----------------------------------------------

Perhaps another time-

[nate]

in Internet Explorer, it is "Help" ... "About Internet Explorer" (not "Help" ... "Properties")
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[ben]

Nate

I had classroom delivery of education in mind. You are right that blogging is non-exclusive.

I don't understand the rest of your post.

[Corey]

"and that creates a serious problem when incorporation would nullify that language by disestablishing religion established in the several states."

Its only a problem if you are a textualist who happens to belong to the Federalist Society. I find myself strangely untroubled by the incorporation of my basic rights against more possible oppressors.

States with established religions don't have a very good historical record of being nice to people. Why would we want that back? Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man? Is there a state that could even democratically establish a religion now that everyone gets to vote? I don't even think Utah could get 51% for that. There is more than one brand of Mormon too.

[nate]

http://www.cato.org/pubs/journal/cj14n3-9.html

For some reason, cognitive dissonance also comes to mind. If you just pay tons for a private education, when you could have gone to state university or public schools and had a similar experience, you have to rationalize all the spending somehow.

excerpt from http://www.learningandteaching.info/learning/dissonance.htm :

"andócounter-intuitively, perhapsóif learning something has been difficult, uncomfortable, or even humiliating enough, people are less likely to concede that the content of what has been learned is useless, pointless or valueless. To do so would be to admit that one has been "had", or "conned". "

Disclaimer: I am not a psychology or sociology or education major and may be totally wrong.

[Jake Sinclair]

Posner's argument that nonsectarian establishments of religion might be permissible as a subsidy to offset government subsidies for secularism is interesting. But I think the argument by some evangelicals for government establishment is different and more forceful. They seem to hold that government secularism produces a kind of market failure in religiosity and good conduct. Government "establishments" are thus a way of creating a public good in the form of God's blessings for this country from which no one can be excluded.

The argument goes like this. When government banishes religious expression from public spaces, it implies that religion is purely private and that God does not care whether we pray or publicly acknowledge His supremacy. Government sets the tone, and as a result many will not pray or believe (even if they tell the pollsters that they do). A purely private market in religiosity does not produce sufficient homage to God to earn His blessings for this country. Some evangelicals say this is why the country has gone downhill ever since prayer was banned from public schools. Vice (abortion, promiscuity, crime, hedonism) and disbelief (the media, Hollywood) spread when religious expression is privatized. We experience a market failure for this good.

Like national defense, God's blessing is a public good. Government helps to generate this good when it establishes religious expression in public places. God gets the homage to which He is entitled and government sends the signal to citizens that they should be faithful in order to earn God's blessing. Citizens are admonished to avoid a counterproductive, free-riding secularism.

If so, government establishment of religion does more than offset the subsidy for government secularism. It creates a valuable public good.

But if the case for government establishment is really a "public goods" argument, those who employ a "law and economics" approach might rethink their willingness to endorse government establishment of religion in any form. The argument illustrates the dangers of an expansive view of public goods.

[Hank Hill]

No one points out that it's the Dallas Cowboys not the Texas Cowboys? For shame, dear readers.

[Neerav Kingsland]

I respectfully disagree with the line of argument that sets up a dualism between religious and non-religious activities. Rather, the issue should be understood to have three parts: religious, a-religious, and anti-religious.

Not allowing religious monuments on public space is not akin to promoting anti-religious sentiments. To be anti-religious, one would have to place the "athiest ten commandments" on a public space.

Thus, Posner's idea of religious v. secular subsidies is a little off, at least legally speaking. Unless Santa Claus was an athiest, which I believe he wasn't, his appearence is not anti-religious - it is a-religious. If anything, Santa Claus is more of a religious figure than not, and aethiests are being denied their free opportunity to enjoy their version of the month of December.

Becker seems to acknowledge the above argument and even expand it beyond three parts: for him it is more about a monopoly of any idea, rather than religion vs. a-religion vs. anti-religion. Perhaps this is the best way to look at it.

Eitherway, the religion vs. a-religion dynamic seems to be a poor way of understanding the issue.

cheers,

Neerav

[Patrick R. Sullivan]

palooka is making a very good point about the 'neutral language' of the establishment clause. Madison's first draft of the 1st Amendment simply stated that no national church should be established. It seems that the actual language we got meant that not only couldn't congress create an official religion it couldn't interfere with the states (four, iirc) that had established, tax-supported churches.

And, thus, the 14th Amendment 'incorporation doctrine' is shown to be bizarre in its logic. Not to mention that the Amendment could have simply said that its passage would incorporate all (or specific) 'rights' found elsewhere in the Constitution. Since it didn't, the most logical conclusion is that that was not its intention.

"The argument goes like this. When government banishes religious expression from public spaces, it implies that religion is purely private and that God does not care whether we pray or publicly acknowledge His supremacy."

And, since atheism or agnosticism isn't neutrality toward religion, favoring those beliefs would be exactly the kind of establishment of religion that the strict separationists profess to be alarmed about over 10 Commandments and creches on public property.

[nate]

jake:

i've never read a "public goods" argument for establishment of govt religion.

interesting to talk about dangers of an "expansive" view of public goods. what are the definitions\guidelines for a public good?

[Josh]

"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."

Mr. Posner,

I respectfully disagree with this oppinion for the following reason. Assume we are providing basic education as it contributes some pubic good, ie there are benefits to all for living in a society of educated people. This is the specific benefit to which we are willing to contribute. If religious education per se falls outside of this criteria (which I belive it does), then parents should be forced to provide for this education themselves. Enroll your children in a Sunday school or other religion class and send them to public school. If it is looked upon by these people that general education in a secular public school is so distinct from a similar education at a parochial school, then we a clearly subsidizing some portion of the education that is religious in nature. In other words, there must be some reason why these parents feel there child must be taught calculus by nuns. The simplest solution is to provide a free basic education and allow people to seek religious instruction on their own in any discreet packet that is available.

[CTW]

"since atheism or agnosticism isn't neutrality toward religion, favoring those beliefs would be [an] establishment of religion"

this may or may not be true, but is typical of the confusion caused by the false "dualism" criticized by neerav above; as he notes, there is (at least) a tri-partite division. based on a personal poll of friends plus the experiences of a relatively long life, I'd bet the typically ignored "areligious" group, is much larger than the routinely maligned "atheist/agnostic" group, the latter labels suggesting as they do, high level attention to the concept of god. many of us really are "neutral" (more accurately, indifferent) toward religion and god per se. to parrot judge posner in his introduction as a guest blogger for brian leiter, they simply aren't a part of our lives.

until, that is, the zealots start trying to push them down our throats. then, contrary to judge posner's (and other's) interpretation, we don't get "offended", we get scared and defensive. having "christmas" parties, setting up creches on the town common, putting up a monument in the corner of the capitol grounds, etc, aren't a big deal - they're easy to ignore. prayer in public schools is a bigger deal - you can't escape (I know - been there). even bigger is degrading science education with pseudo-science drivel. and biggest of all is the threat (reality?) of government policy driven by religious dogma. "offended" doesn't begin to capture the consequent emotions.

[Seth Ayarza]

Judge Posner,

While as you say, we currently live in a country where religious pluralism predominates in every state except Utah, I'd like to speculate that this pluralism may in fact be a result of the current interpretation regarding the establishment clause to de-establish religion. (Although, I'm not certain about the historical demographic trends regarding religious pluralism...sounds like an idea for my thesis)

Nevertheless, perhaps there would be some migratory consequences of allowing marjorities in every state to pick the kind of religious billboard they prefer. David Brooks recent op/ed in the NYtimes "All Cultures are not Created Equal" makes some insights in this regard.

To sum it up, he says we are seeing greater social fragmentation nowadays then in the past, as conservatives flock to where more conservatives live, and liberals flock to where liberals live. I think the same effects could occur within religious populations.

I'm a bit worried about increasing internal isolation within the United States as it is, and I wonder about the migratory effects a relaxed criteria for public religious symbols might have.

I imagine a community where there occurs a slow narrowing of religious scope that begins from broadly endorsing monotheism (intended or not), to one that endorses christianity, and then Protestant sects...so on.

As a result, we see a ghettoization of American society where a reduced melting pot effect causes an increase in transaction costs and nepotism, while also undermining the uniform cultural structural support that holds a large union together.

From such a perspective, I think it might be appropriate to view 'secular' exclusive billboarding rights as more of a nuisance we have to tolerate in the status quo, yet, their monopoly would be preferable to opening floodgates to all religious symbols.

(At the same time, as a speculative benefit of ghettoization might we see a a reversal of declining civic engagement trends Robert Putnam discussed in 'Bowling Alone?' Maybe a country this big and frictionless isn't natural, thus explaining some of our discontents?)

Also just as an aside regarding Hume, I wonder if a state established religion would work (in contrast with Euro-style established religion) if paired with a strong federalist style system.

Maybe I'm wrong but I think the number of religions has reached equilibrium (maybe except for Tom Cruises' Scientology), and in such a situation it would be feasible to implement a mechanism for a small township based upon an electoral process that could efficiently replace a market alternative. This may especially hold true for smaller communities as it would offset to a degree the centralization disadvantage.

[ben]

You can't just compare public and private schools straight across because they are serving different markets. A good deal of that extra expenditure is in higher teacher salaries at public schools.

Only a fraction of the difference probably goes to salaries. Since the additional overhead per student in public schools is about $3000, a class size of 20 costs $60,000 more year at a public school. I believe the average public school salary is in the order of $45,000. So unless the public/private salary gap is huge, differences in salaries cannot explain the cost gap.

The "inferior results" are because public schools must take every kid while private schools select on ability. The private schools also drain off top performing students, so its a rigged comparison.

No. The comparisons control for differences in ability and background. I must say, however, some studies find a public/private performance gap after controlling for ability etc, but others do not. None that I am aware of report a negative private effect. Still, not bad in view of the significant cost gap.

>>"Furthermore, students who move to private schools do better"

Ok, fine, but they would also do better if we stuck all the private school kids and parents who care back into their public schools. Your argument if true really indicates that putting kids of differing abilities together is more helpful than segregating them on merit.

Your segregation theory could be true, but why not reduce segregation by putting more disadvantaged kids into private schools? This has the twin benefits of sending kids to where results are better (or no worse) and costs are lower. Going your way rests on the precarious hope that public school systems will improve.

Levitt (2002) “Understanding the Black-White Test Score Gap in the First Two Years of School” (available at nber.org) argues that there are bad schools (bad in terms of gang problems and non-student loitering, not class size or funding). All students at these schools are disadvantaged but black students are more likely to attend a bad school and this, he suggests, may be the cause of the black-white gap, at least in early years. Your proposal Corey would see those bad schools expanded (ie. rewarded). Mine would see them replaced.

>>"These facts suggest private schools are onto something."

Yes, that you can avoid hassle and raise your test scores by shutting out the kids who need the most help.

No. The suggestion was to provide the poorest with the means to choose other schools.

It is established "truth" in economist land that a free labor market will have a "natural" unemployment rate. Well, a free education market will have a "natural" un-educated rate.

Classic straw man. Imagine a scenario, pretend it is plausible and knock it over. Universal access can be preserved with vouchers. And in case you hadn’t noticed the current system has dreadful inequalities. Vouchers provide a way for the poorest to have the choice wealthier parents enjoy.

And not only will many areas be under-served in a private market, less of every dollar spent on education will actually go to education, because now the schools will have shareholders and dividends and profit-sharing.

There’s about $3000 of overhead per student in the public system. That leaves plenty of headroom for some combination of improving education and saving money. There is no reason private provision will not be dominated by not-for-profit institutions.

On the religion side, one thing I have learned since coming to live in the Bible belt is that Christian churches are constantly splitting off and factionalizing over personal or ideological fights. In order to attract members, new and old churches put large portions of their budgets into bigger and fancier new buildings. The end result is that HALF the church buildings in many towns sit completely empty. That's just waste production, which I belive old Marx said was a common problem with capitalist structures.

It’s funny you say that. I understand Catholic private schooling has particularly low cost per student. At least they did in 1994 according to Becker (http://www.worldbank.org/html/extdr/hnp/hddflash/workp/wp_00052.html) Perhaps your observation is only relevant for other Christian sects. Anyway, since Marx is wrong on this point for much or all the rest of the economy, what makes education the exception?

[nate]

"No. The suggestion was to provide the poorest with the means to choose other schools."

is it possible it is something other than cost prohibits choice?

if private education is sufficiently better (as measured by a higher NPV of future earnings), and it is easy to borrow money, then people would be choosing schools regardless of "vouchers"?

[ben]

Nate

Borrowing for education has two roadblocks. One, the borrower, being at the start of his/her education, usually has no collateral, particularly when from a poor family. Two, the asset produced by education is intangible and cannot be re-possessed.

[nate]

interesting... we could have a long thread\discussion\background overview on cash flow lending vs. collateral-based lending -- in the context of education or other.

true, education can not be repossessed. however, it also can not be absolved through bankruptcy? (even prior to the recent bankruptcy changes)

ben: it is not completely inconceivable that some of your concerns could be addressed through financial innovation. one has to wonder why this innovation has not occurred if there appears to be a market-based reason for it to occur. If one believes in privatizing in general, then why not privatize the funding for private education? A lot of "poor" people may not own property and may not pay property taxes. Is it possible that a lot of the "poor" may have many dependents, low and unstable incomes, and no property ownership and may not pay much enough in taxes to cover a voucher?

[Dave]

Brief comment in response to the supposed dubiousness of the incorporation doctrine:

Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights and specifically to overrule not just Dred Scott but also Barron v. Baltimore. He casts serious doubt on the credibility of the anti-incorporation scholars such as Raoul Berger and Charles Fairman. He might be wrong, but the onus ought now to be on those who disagree with him to refute the wealth of evidence in his book.

Incorporating the establishment clause to protect against state established religion is intellectually more of a stretch than with other parts of the Bill, for the structural reasons Palooka mentions. Again, Amar offers good reasons why free exercise, equal protection, and other constitutional guarantees applicable to the states probably achieve the same result of disestablishment.

Also, Palooka is factually wrong about Jefferson's views on state's established churches, at least according to his contribution to Virginia's public policy:

http://www.worldpolicy.org/globalrights/religion/va-religiousfreedom.html

[Palooka]

"Its only a problem if you are a textualist who happens to belong to the Federalist Society. I find myself strangely untroubled by the incorporation of my basic rights against more possible oppressors.

States with established religions don't have a very good historical record of being nice to people. Why would we want that back? Is it unreasonable to ask for some sort of proposed good that would be served other than fidelity to the wishes of some dead white man? Is there a state that could even democratically establish a religion now that everyone gets to vote? I don't even think Utah could get 51% for that. There is more than one brand of Mormon too."

Spain, Italy, Sweden, and Britain are some of the modern countries which have "established" churches. Don't hold your breath for the Court to cite that international "consensus."

At least you're honest in your approach and your distain for the Constitution. What I particularly dislike is those who feign respect and fidelity to that document but systematically erode its significance and purpose. One reason why I have great respect for Posner is because he's intellectually honest enough to admit where his jurisprudence comes from. Its not exactly my flavor, but he's not trying to dress it up as something it's not and pull a fast one on the American public.

On another thread you were rabidly pro-democracy, so much that you were willing to concede the elitist control of the judiciary is a bad thing. I'm not sure how your position with respect to establishment harmonizes with that position.

Your last sentence is the most puzzling. If Utah, one of the most religious and monolithic states, could not conceivably get the 51% required to establish a particular religion, then what is the particular problem with over-ruling the incorporation of the Establishment Clause?

[Palooka]

"Also, Palooka is factually wrong about Jefferson's views on state's established churches, at least according to his contribution to Virginia's public policy."

I thought I had read some evidence to the contrary (though I thought the evidence was a mixed bag), but after a few google searches, I found nothing. I'll concede the point =)

[nate]

http://www.weeklystandard.com/Content/Public/Articles/000/000/005/950kacks.asp

[nate]

same URL, only put on two lines just in case the end of the URL in the previous post got lopped off in your web browser

http://www.weeklystandard.com/Content/
Public/Articles/000/000/005/950kacks.asp

[ben]

Corey

Vouchers will allow more parents to buy their way out of public schools, which will further impoverish those schools.

I have just noticed the leap in reasoning here that seems to underpin your view. I do not think can be justified, at least not without some evidence.

Moving students from high-cost schools to low-cost schools must eventually leave spare money in the government's pocket. That money can be allocated anywhere, including, presumably, public schools.

Whether vouchers will cause higher or lower public school funding per student depends on the details funding mechanism. But if vouchers leave the government with spare money then it is hard to see how vouchers will cause a reduction in public school funding per student.

Of course total funding of public schools will be reduced by vouchers but surely you do not dispute the relevant funding statistic is expressed per student?

[Patrick R. Sullivan]

"Akhil Amar's 1998 book the Bill of Rights offers powerful textual and historical reasons why the 14th Amendment, sec. 1 was written to incorporate the Bill of Rights..."

How does he explain away that, after passing the 14th Amendment 7 years earlier, many of the same people who did, took up the Blaine Amendment which proposed:

"No state shall make any law respecting religion..."

That would be redundant if the 14th Amendment had been intended to incorporate the 1st Amendment.