Eugene Volokh has a typically masterful post subjecting the common complaint against the Ten Commandments in the courthouse — that tax funds supplied by people of all faiths and no faith should not be used to subsidize the expression of one faith — to some penetrating analysis based on some searching questions about the “original meaning” of the constitutional bars (1st and possibly 14th Amendments) against the establishment of religion.
According to Eugene, the ubiquitous argument that no taxpayer funds should support any religious expression
may capture part of the issue here. But it seems to me incomplete, because it doesn’t explain just what’s wrong with a Sikh’s money being taken to express a Christian or Jewish religious document. After all, the Constitution generally allows the government to use racists’ money to express anti-racist messages, marijuana enthusiasts’ money to express anti-marijuana messages, or pacifists’ money to express pro-war messages. Some radical libertarians may argue that even this should be unconstitutional, or at least that it is unjust — but that’s not the view of either the legal system, or, I think, of most Americans.
To make this argument work, one then has to explain how government religious expression is different than government ideological expression….
Eugene goes on to discuss how religious expression by government(s) may, and may not, be different from ideological expression. Read the whole post, because I want to suggest an amplification of what he says.
As I argued in a substantial (or at least long and portentous [from dictionary.com: Full of unspecifiable significance; exciting wonder and awe …. Marked by pompousness; pretentiously weighty]) post here (I’m not going to summarize, so if you interested in this sort of thing you’ll have to go read it), religion, and race, are “different” because they are quintessentially constitutional matters. Note the small “c” — constitutional in the sense that they are fundamental building blocks of early, and current, American society. They play such a prominent role in the Constitution of our society because of their role in constituting the society. That is why the government is perfectly free both to subsidize and proclaim the virtues of peanuts, but not Presbyterians. Many other issues — welfare, taxes, indeed, subsidies themselves — may on occasion be bitterly divisive, but they do not implicate the structure of the society itself in the same manner as religion and race. That’s why any governmental activity in those areas deserves special scrutiny.
And, as I argued at length in my earlier post, that’s why those who get themselves bent out of shape by the violation of strict neutrality they see in school vouchers should recognize how inconsistent they are by not seeing the same violation of necessary neutrality when the government extends benefits or burdens based on race.
