Tuesday, January 12, 2010
Caroline Mala Corbin (Miami) has posted on SSRN her forthcoming article in the UCLA Law Review: Ceremonial Deism and the Reasonable Religious Outside.
Here is the abstract:
State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.
But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it. The Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should evaluated from perspective of a reasonable religious outsider.
I must say that I love an article that can work in both sexual harassment theory and the Establishment Clause! But more seriously, and as Caroline explained to me, this article does apply a feminist analysis of the reasonable person in sexual harassment law to the reasonable person used in establishment clause law. I am a big fan of Caroline's previous work and expect this article will also be a wonderful read.