Here are a few more thoughts on two recent posts on the U.S. Supreme Court and religion.

(1a) Doesn't the government unequal treatment of religion and unreligion apply only to speech?

No-- how about the unequal treatment in funding? The judges won't let the state legislatures fund religious schools equally with nonreligious ones.

(1b) If the courts mandate that, for example, everybody be equally eligible for office, isn't that a sign that they value true equality?

No. My earlier point was that it all depends on the starting point. If the status quo is that only Anglicans can hold office, then allowing Catholics to hold office too can be motivated either by a desire for equality or by anti-Anglican or pro-Catholic bias. The reign of James II of Great Britain is a good example. A Catholic convert himself, he tried to relax the test laws which forbade non-Anglicans from holding public office. He included Dissenters (i.e., Congregationalists, Quakers, Presbyterians, etc.) as well as Roman Catholics, but most Dissenters were bitterly opposed to his policy, seeing it, correctly, as a first step in establishing the Catholic church, and realizing that King James was unlikely to appoint many of them to anything anyway. The idea of James II valuing neutrality in itself is ludicrous; everybody believed that his true preference was more likely that of his good friend Louis XIV of France, who went so far as to expel all the Protestants from France.

Another example, though my memory may not serve me so well here, is the Supreme Court case from the 1920's that said a state could not require attendance at public schools (as opposed to attendance at some kind of school). Pierce v. Society of Sisters, 268 U.S. 510 (1925). At that time it was not the Supreme Court was hostile to religion, but that a state legislature was hostile to Catholic and for-profit schools and was trying to shut them down. The law may have been neutral on its face--"everybody must go to the same public school system"-- but the motive was not neutrality, but to move from a status quo in which most private schools were Catholic.

That, by the way, was not the doctrine the 1925 Supreme Court used to unanimously strike down the Oregon law. Rather, the Court said rather vaguely that (a) the law destroyed the value of private property (the private schools), and (b) the law had no reasonable basis in the police power of the state.

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 43 S.Ct. 625, 67 L.Ed. 1042, 29 A. L. R. 1146, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children *535 under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.  

We all agree, I take it, that it is desirable that all the citizens of the Untied States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one. The only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment. It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this but I cannot bring my mind to believe that in some circumstances, and circumstances existing it is said in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result. The part of the act with which we are concerned deals with the teaching of young children. Youth is the time when familiarity with a language is established and if there are sections in the State where a child would hear only Polish or French or German spoken at home I am not prepared to say that it is unreasonable to provide that in his early years he shall hear and speak only English at school. But if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar. No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is "whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat." Purity Extract and Tonic Co. v. Lynch.... I think I appreciate the objection to the law but it appears to me to present a question upon which men might reasonably differ and therefore I am unable to say that the Constitution of the United States prevents the experiment being tried....

(3) I said that Occam's Razor suggested that in trying to explain why the Supreme Court would deviate from the Constitution to mandate state neutrality in religion we could rely on the judges being of a class of people generally hostile to religion rather than having to go on and hypothesize that the judges really believed in neutrality. But is it really more parsimonious to believe that judges would be motivated to stop efforts to promote religion simply by virtue of not being religious themselves? They gain no material advantage from acting against religion, after all.

This could indeed use a bit more explanation. Suppose each judge would get a $1,000 tax benefit by ruling in favor of Z, that they rule for Z, and that the statute in question so clearly goes against Z that we cannot explain their decision as simple obedience to the law. We cannot conclude immediately that the judges ruled for Z because they got the tax money. Rather, we need the intermediate logical step that judges, like most people, value tax benefits. It is not a hard step, but it is one that has to be taken.

Similarly, if all judges are atheists, it is not immeidate, but follows closely, that they would get mental benefit from not having to listen to public prayers they don't believe in. My guess is that such a benefit would be more likely to corrupt a judge than money, because the way judges are selected gives us judge who don't care much about salaries but do care a lot about political issues and what other people think about them. (Whether elected or appointed, a judge has to have some political connections, which usually implies an interest in issues and doing things to get liked by voters or politicians.)

We could go on to add the hypothesis that judges care a lot about neutrality directly, but I'd want extra evidence before going to that step. I discuss in my post how the evidence actually goes against that, speaking of Supreme Court judges over the past 60 years.

I should note that this argument