Eugene Volokh has replied to my earlier comments on why the Supreme Court's move to neutrality in religion since 1940 shows hostility to Christianity. He makes some good objections, but I can answer them. He says,
How exactly is requiring equal treatment for all religions "anti-Christian"? We
wouldn't say that requiring equal treatment for blacks and whites, after an era in which
whites were the beneficiaries of formal discrimination, is "anti-white." (I'm
specifically not talking here about supposedly remedial discrimination against whites --
only about equal treatment.) Why is requiring equal treatment for all religions "anti-
Christian"?
... Consider tax exemptions for churches. According to Prof. Rasmusen, holding
that such exemptions should also be extended to synagogues, is "anti-Christian," and
presumably also "hostile to religion" (a term Prof. Rasmusen uses earlier in his post).
My point (which Professor Volokh summarizes at the start of his post, which I omitted
here) is that whether an action is anti-religious must be determined by how it moves
from from the status quo. If we start in a situation in which synagogues are tax exempt,
and then the courts make a strained constitutional interpretation that synagogues but
not churches must be taxed, I would consider the courts anti-Jewish. If, however, we
started from a situation in which the Constitution said that synagogues but not
churches must be taxed, then I would not consider a court which upheld the Constitution
anti-Jewish.
It is important here that the courts needed to go out of their way to twist the U.S. Constitution to forbid state encouragement of particular religions. Plain language, intent, and longtime practice all went in the other direction. And the Supreme Court has not dared to be consistent in their interpretation, since then, for example, they would have to say that the U.S. Constitution forbids Christmas, an obviously sectarian holiday, from being a vacation day for federal employees.
The Supreme Court's policies are quite confusing, but I will note that they are not so much anti-Christian as anti-religious generally. I was perhaps not clear enough on that in my earlier post. I don't think Supreme Court justices like Judaism or Islam any better than Christianity. And I doubt they would object to nonreligious Christianity, Judaism, or Islam-- that is, to organizations which pretend to be religious but actually are social clubs or liberal activist organizations. Indeed, we see that the leftwing regimes of Western Europe are quite happy with established state religions, because they have become social organizations largely empty of religious content (I am thinking more of the Protestant than the Catholic countries here), and the state religions, with their wealth of tradition, buildings and money, tend to keep truly religious organizations from thriving. Thus, I don't think the Supreme Court justices have to bite their lips when they ban menorahs as well as crosses.
Professor Volokh made the good observation that
We wouldn't say that requiring equal treatment for blacks and whites, after an era in which whites were the beneficiaries of formal discrimination, is "anti-white."I might say that, if the Constitution clearly required formal discrimination against blacks. Or, if you like, I would say that the court is "pro-black". But this does raise another alternative. Maybe the Court, in overruling the Constitution and saying that states cannot promote religion (in general, or Christianity in particular, or Episcopalianism in particular), is motivated not by animus against religion but by a belief that neutrality on religion is a good thing in itself. This is equally a violation of their oath to uphold the Constitution, but it is different from trying to discourage religion or promote atheism. How would we distinguish the Court's motivation?
Well, first we could see if the Court shows any desire to promote neutrality in other dimensions. Does it forbid the government from saying, for example, that smoking is bad or good? Or that racism is bad or good? No, it doesn't. So the Court would have to have just a strong desire to discourage the government from promoting religious or anti-religious opinions.
Second, we could see if the Court shows a strong desire that the government treat religion and nonreligion equally. Must schools teach Creationism as well as Evolution? Must schools teach the Mormon theory that the American Indians are Jews who had their skins darkened as punishment for their sinfulness, as well as the theory that they came over from Siberia? Must sex ed classes teach the theology of homosexuality and fornication as well as "how-to" classes? No-- the Court does not require equal time for religious viewpoints.
Third, we could see if the Court requires religious organizations to be treated equally with nonreligious ones. A Court that believed in neutrality, as opposed to discouraging religion, would allow state funding of religious schools, for example, so long as any kind of religion got its schools funded. I think quite a few countries operate on this system. But in the United States, the Court has instead taken the position that religion taints a school and prevents it from being funded.
An additional source of evidence is the attitudes of the judges and of the East Coast elite to which they cater. Do the judges themselves comprise a mix of the very religious and the atheistic? How about the East Coast elite? I might be wrong, but my impression is that a large majority of both judges and elite are nominally Protestant and Jewish but actually uncomfortable with religion and frightened by traditionalists, while a minority are Catholics who may be pious but try to keep quiet about it. It could be that all these nonreligious people actually favor neutrality rather than promotion of their own point of view---but the simplest explanation is that they prefer to state a direct desire for neutrality as their reason for wanting neutrality, rather than saying that they want to discourage religion but are too chicken to actually discriminate against it. Occam's Razor is useful here--- if policy X favors a person's interest, then that is the simplest explanation for why they support X, rather than going on to theorize that they have an ideological preference for it. And of course, their denial of selfish motivations can be disregarded; they'd say that whether it were true or false.
Thus, I think the best explanation for the Establishment Clause jurisprudence of the U.S. Supreme Court is hostility to religion generally, combined with a prudent fear that if it moves too far too fast, the backlash might hurt the Court's power. That provides a good explanation all the way from the 1940's to the present.
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