This paper is based on my brief remarks on a panel dedicated to “reimagining the relationship between religion and law” and focuses on the U.S. Supreme Court\u27s church and state jurisprudence. In particular, I ask whether an approach to the Establishment Clause known as accommodation is consonant with the larger concept of pluralism, particularly in the context of public religious symbols and displays, and offer some proposals and tentative conclusions. I propose two alternatives, signs and disclaimers, and tentatively conclude that the use of either might relieve the perceived tension between accommodation and pluralism

Roy, Lisa Shaw

English

Seattle University School of Law: Digital Commons

Can the Accommodationist Achieve Pluralism?Lisa Shaw RoytIn March of 2008, Seattle University School of Law hosted an en-gaging conference on Pluralism, Religion, and the Law. The theme ofthe conference—religion and pluralism—is not only unavoidable but isprobably one of the most important issues of our times. This  paper isbased on my brief remarks on a panel dedicated to "reimagining the rela-tionship between religion and law" and focuses on the U.S. SupremeCourt's church and state jurisprudence. I n  particular, I ask whether anapproach to the Establishment Clause known as accommodation is con-sonant with the larger concept of pluralism, particularly in the context ofpublic religious symbols and displays, and offer some proposals and ten-tative conclusions. I  propose two alternatives, signs and disclaimers, andtentatively conclude that the use of either might relieve the perceivedtension between accommodation and pluralism.I. WHY VIEW PLURALISM THROUGH AN ACCOMMODATIONIST LENS?First, the easy question: What is meant by the term pluralism? I t  isa (relatively) easy question because most of us have a sense of what plu-ralism means. Webster's defines pluralism as, among other things, "astate of society in which members of diverse ethnic, racial, religious, orsocial groups maintain an autonomous participation in and developmentof their traditional culture or special interest within the confines of acommon civilization." I n  fact, to recite this definition is to do no morethan simply make an observation about society as we know it. But  thecommon civilization identified in the last part of that definition seems tobe at odds with the society described in the first part, particularly in thecase of religion. A t  the point at which we begin to recognize a commonreligious character we are confronted by the danger that e pluribus unumt Jessie D. Puckett, Jr., Lecturer and Associate Professor of Law, University of Mississippi School ofLaw. This paper was presented as a part of the Law, Religion and Pluralism Conference held atSeattle University School of Law on March 7, 2008. I  thank the organizers for putting together amarvelous conference, and the participants for their questions and feedback.1. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 955 (11th ed. 2005).361362 S e a t t l e  University Law Review("out of many, one"), will become an oppressive state-sanctioned estab-lishment of religion. Thus, the conventional wisdom has been that plu-ralism requires a strict separation of church and state, or perhaps neutral-ity between religion and nonreligion, and not a more flexible religiousaccommodation,2 t o  s u r v i v e  a n d  t o  t h r iv e ?It might seem strange, then, to think o f  pluralism in terms o fwhether an accommodationist approach to the Establishment Clause canchieve it. There are very practical reasons for looking at these two ideastogether. The current composition of the U.S. Supreme Court suggeststhat the general trend for Establishment Clause cases is toward acknowl-edgment and accommodation of religion and away from strict separa-tion:1 Mo reove r,  religious  accommodationists  prefer  a  public  squarewith a rich religious vibrancy that reflects the religious pluralism of thepopulace, and they therefore likely would argue that there is no dishar-mony at all.5 A n  o b v io u s  p oi n t  of  t en si on  e xi st s,  however ,  between  thegroup I„have. b e e n.d e s e ri b i n g  in  t hi s  p ap er ,.  wm  I  will  refr  to  asgiotts acCOMmOdationiSt pluralists," and another group whom I Will referto as -r e l ig i o us  m u li cu l tu r al i st s  While  both  pluraliss  and  -multicul-turalists appreciate the connection between religion and identity, multi-Culttiralists would tend to view majority manifestations of religion with.-distrust, perhaps viewing them as -symbols of dominance rather than -as--- group expressions-of identity. This particular strand of argument presses-•'the question -Of  whether  .'ateptmriodatiOnisin•-••cau indeed promote plural-  •irt.• ••••••[Vol. 32:3612, "Accoinmodation" refers to an approach to the Religion Clauses that values individual reli-gious practice:, the autonomy of religious groups, and the presence of  religion in public l &  Seegenerally Michael W. McConnell, Accommodation of Religion, 1985 SUP. CT. REV.I  (1985). Asdiscussed ;a this paper, accommodation in the Establishment Clause context refers to an approachthat is less likely to find public manifestations of religion unconstitutional._ 3 ,  See, eg Erwin Chemerinsky, The Wren Cross Controversvs Religion and the Public Uni-versiou Why Church and State Should Be Separcue, 49 Wm. & MAR Y L, REV. 2193, 2206 (201,18),4. The ttvo most recent additions to the Court, Chief lusticc Roberts and Justice Ali t°, seempoised to continue t h e-a c c o m m o d a t i on i s t  t r e n d  i n  t h e  C o u rt ' s  d o c tr i n e.  S ee ,  e .g .,  Hem  v.  F re ed omFrom Religion Fund., Inc., 127 S. Ct. 2553 (2007).5. CI McConnell, supra note 2, at 14 ("An alternative view is that religion is a welcome ele-ment in the mix of beliefs and associations present in the community. Under this view, the emphasisis placed on freedom of choice and diversity among religious opinion. ' the nation is understood notas secular but as pluralistic.. T h e  idea of accommodation of religion, which is foreign to interpre-tations,of the Religion Clauses based on strict neon-ditty or separation, follow's naturally from thepluralist titirlerstanding), lvicConnell's article ultimately focuses on legislative accommodations;he acloow ledges that rsonabie minds may differ on 'whether permitting certam religious symbolssuch as the Nativity creche in the public square "nints] counter to the ideal of religious pluralism."i d at 49-50; see also Michael W, McConnell, Accommodation of Religion: An Update and a Be-sponse So thC Critics, 60 GEO. WASH. L. REV, 685, 687 (1992) (excluding from discussion religiousdisplay and symbols cases and referring to t.hG se cases as involving "collective expressioil of reli-gious ideae)i:2009] C a n  the Accommodationist Achieve Pluralism? 3 6 3ACCOMMODATION AND PLURALISM: SYMBOLS AND DISPLAYSIn the case of religious symbols and displays, the multiculturalist'sconcerns are reflected in the doctrinal skepticism about the compatibilityof accommodation and pluralism. A  prominent example is the line ofU.S. Supreme Court cases involving holiday displays and featuring Jus-tice O'Connor's endorsement test that focuses on whether a citizen ismade to feel like an "outsider."6 J u s t i c e  B r e y e r ' s  c o n c e r ns  a b o ut  c i v ilstrife and divisiveness in the 2005 Ten Commandments case also seem toreflect such skepticism!To appreciat  these concerns, one need only consider an examplefrom the current overabundance of  reality television. The Home andGarden Television Network features several shows in which homeown-ers attempt to market their homes for sale. Realtors and professionalhome "stagers" offer advice to anxious sellers on how to improve thechances of a speedy and profitable sale, and the standard advice with re-spect to family pictures is to remove them from the home. These home-selling experts reason that removing family pictures allows prospectivepurchasers to envision themselves in the house. B y  contrast, leavingfamily pictures on display reminds potential buyers that the home be-longs to someone else and prevents them from making the kind of per-sonal connection that could lead to a quick offer to buy. I n  the sameway, the argument goes, a citizen who observes a religious symbol ordisplay that does not represent either her beliefs or the sub-community towhich she belongs is made to feel that she is not a full part of the largercommunity.8 T h e  h i s t or i c a l  r e sp on se  to  this  o bj ec ti on  has  been  to  in-clude, wh re possible, more religious symbols, including symbols of mi-nority faiths. This general approach has been met with approval by theU.S. Supreme Court.9 W h i l e  a t t e m p ti n g  t o  s h o wc a s e  r e l ig i o us  d i ve r si t yis one way to solve the problem, it is not always feasible in every public6. The endorsement test first appeared in Justice O'Connor's concurrence in Lynch v. Don-nelly, and the test asks whether the government action "sends a message to nonadherents that theyare outsiders, not full members of the political community, and an accompanying message to adher-ents that they are insiders, favored members of the political community." 465 U.S. 668, 688 (1984).7 See, e.g. Van Orden v. Perry, 545 U.S. 677, 698 (2005) (Breyer, J., concurring) ("[The Re-ligion Clauses] seek to avoid the divisiveness based upon religion that promotes social conflict,sapping the strength of government and religion alike."). Justice Breyer cast the deciding vote infavor of the constitutionality of the Ten Commandments monument in Van Orden and against theconstitutionality of the monument in McCreary County v. ACLU of Ky., 545 U.S. 844 (2005).8. See Lynch, 465 U.S. at 688 (O'Connor, J., concurring).9. See County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (hold-ing a crèche display in a county building unconstitutional, but finding constitutional a Christmas treeand menorah on the county courthouse steps).364 S e a t t l e  University Law Review [ V o l .  32:361setting to include many different religious symbols.m I t  a l s o  f o l l o w s  l o g -ically that even the most inclusive display would probably fail to be in-clusive of every religion or creed represented in a given community.M. DISCLAIMERS AND SIGNSIncreased effort at inclusive religious representation is one tool withwhich to promote pluralism, but in the cases in which such an effort isnot possible or practical, the issue for the accommodationist pluralist re-mains whether it is possible to avoid the exclusionary message perceivedby some when confronted with religious symbols. O n  this particularpoint Noah Feldman in his book, Divided by God, concludes that the an-swer is yes": "Talk can always be reinterpreted, and more talk can al-ways be added, so religious speech and symbols need not exclude."12Two forms of explanatory "talk" that I propose here are disclaimers andsigns. A  disclaimer might accompany a particular display or symbol toexplain the social or historical significance of the symbol. A  sign, on theother hand, could contain a general statement about the openness of thecommunity concerning religion.The Supreme Court has not squarely considered this first idea, thata disclaimer accompanying a religious display would remove or lessenany concerns about the Establishment Clause. I n  its first Ten Com-mandments case, the Court ruled that a legislative statement contained atthe bottom of the display concerning the historical significance of theTen Commandments could not override the religious purpose of postingthem in a schoolhouse.I3 B u t  i n  J u s t i c e  B r e n n an ' s  d i s se n t  in  L yn ch  v.10. The facts of  th  Court's 2008-2009 Ten Commandments case, for  example, illustrate asituation in which a minority religion's proposed symbol conflicts with the existing one, not simplybecause it represents an obscure faith, but because i t proposes an alternative interpretation of  thesame religious narrative. See Summum v. Pleasant Grove City, 483 F.3d 1044 (10th Cir. 2007),cert. granted, 128 S. Ct. 1737 (2008); The Aphorisms of Summum and the Ten Commandments,http://www.summumus/philosophy/tencommandments.shtml (last visited Nov. 10,2008)  (explain-ing that Moses first received the Aphorisms of Summum on tablets at Mount Sinai as a "higher law"prior to returning to Mount Sinai to obtain the tablets containing the Ten Commandments, or "lowerlaw").11. NOAH FELDMAN, DIVIDED BY GOD (2005). Feldman reaches a conclusion that I havereached previously, though in his case with far less handwringing. See Lisa Shaw Roy, The Estab-lishment Clause and the Concept of Inclusion, 83 OR. L. REV. I (2004). Compare, e.g., id at 39-40(discussing the Jehovah's Witnesses' desire to be exempted from the pledge rather than to eliminatethe practice altogether), with FELDMAN, supra, at 242 ("The Jehovah's Witnesses never claimed thattheir conscientious scruples required that the pledge and salute be abolished for everyone — they justwanted their children to be exempt.")12. FELDMAN, supra note 11, at 238 (2005). Feldman proposes that the way to bridge the di-vide between "Legal Secularists" and "Values Evangelicals" is to flip the Supreme Court's Estab-lishment Clause doctrine such that public religious symbols would not violate the EstablishmentClause, but public funding for religious institutions would. Id. at 238-42.13. Stone v. Graham, 449 U.S. 39 (1980).2009] C a n  the Accommodationist Achieve Pluralism? 3 6 5Donnelly a few years earlier, he seemed to approve of a crèche on federalpark land adjacent to the White House because that display contained"explanatory plaques" designed to disclaim government sponsorship anddownplay religious differences.14 T h e  C o u r t ' s  d o c t r i n e  m a k e s  c l e ar  t h atthe erection of a display or symbol must not have a religious purpose, butbey nd that, particularly in the case of long-standing historical symbolsor displays, it is not clear what constitutional effect a disclaimer wouldhave.15 As for signs with targeted messages intended to convey religiouspluralism, there is even less guidance as to whether such a novel ap-proach would pass constitutional muster. A  2006 National League ofCities initiative challenged American cities and towns to promote inclu-siveness by posting signs in prominent places in their cities that read,"Welcome. We are Building an Inclusive Community."I6 O n e  c o u l dimagine a city sign f cused on religious pluralism that read, similarly,"Welcome. We are building an inclusive community of diverse religions,faiths, and creeds. There are no outsiders here."" As  with the explicitdisclaimer, no Supreme Court cases address the issue of whether a com-munity may use signs to control the religious message it sends—or doesnot send. However, unlike the disclaimer, which in some cases mightmerely describe the historical significance of a symbol or display, thesign is an attempt by a community to define itself on religious terms.Even if  the sign did not affect the interpretation of a particular religioussymbol as exclusionary or welcoming, the sign itself would be subject toconstitutional scrutiny. A  court might consider a sign to have been ani-mated either by a secular purpose, to promote pluralism and diversity, orby a religious one, to immunize a particular religious symbol from con-stitutional challenge. Practically, too, the strategy is one of high poten-tial reward and correspondingly high risk. I t  is conceivable that somecitizens would not tolerate explicit messages about religion and that oth-ers would resent such overt efforts at pluralism.14.465 U.S. 668, 707 (1984) (Brennan, J., dissenting). In discussing the case involving federalpark land, Brennan compared the display in Lynch, noting that the town of Pawtucket "made noeffort whatever to provide a similar cautionary message." Id. (distinguishing Allen v. Morton, 495F.2d 65, 67-68 (D.C. Cir. 1973) (per curiam)).15. Compare, e.g., McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) (religious purposeevident from evolution of  displays containing Ten Commandments), with Van Orden v. Perry, 545U.S. 677 (2005) (long-standing monument in Texas capitol merely an acknowledgment of religionthat does not violate the Establishment Clause).16. Several cities joined and have adopted the signs. Haya El Nasser, Small Indiana TownSinging Tune of Racial, Ethnic Harmony, USA TODAY, Aug. 4, 2006, at 3A; see also Lisa ShawRoy, Religion and Inclusion: The Impact of Signs, NAT'L L. J., Mar. 26, 2007, at Col. 1.17. Roy, Religion and Inclusion, supra note 16.366 S e a t t l e  University Law Review [ V o l .  32:361With all of this in mind, let us return to the example of the homesellers and the impact of their family pictures on potential buyers. Thisexample helps us understand the perspective of the potential buyer, but itdoes not necessarily correspond to the reality of shared public space. Apotential buyer expects to make the home her own; she will not have toshare it with a larger community. Likewise, once he is in his new home,an owner likely feels no obligation to establish a sense of continuity withor historical connection to the home's previous occupants. Perhaps abetter example might be one that comes from my own institution: ourlaw school's main floor has a hallway featuring pictures of each graduat-ing law school class, from the earliest up to the most recent. The picturesspread across one long corridor divided in the center by an entrance tothe law library. O n  one end of the hall are class pictures that featuremostly white males, with few persons of color and few women. A t  theother end of the hall, the pictures become more diverse. How should alaw school ensure that both sides of the hall make all students feel wel-come? One possibility would be to remove the older class pictures andreplace them with artwork, current pictures of  students or faculty, orother historical information. But  a better alternative would be to retainthe older class pictures, and use additional images and/or text to conveythat the law school embraces all students regardless of race or gender orother defining characteristics.In fact, for either disclaimers or signs, the real test is whether suchideas would succeed in practice. Success would likely depend on suchconsiderations as whether in a given community a relationship of trustand good faith already exists between religious communities and gov-ernment, and between citizens of different faiths and of no faith.IV. CONCLUSIONAccommodation and pluralism are not always thought to go hand inhand, but neither does this observation mean that the accommodationistseeking to promote pluralism is doomed to failure. In  the case of publicreligious symbols and displays, the possibility of disclaimers and signsmay potentially reconcile the interests of both accommodationists andpluralists. Though the constitutional status of such messages is unclear,as mentioned earlier, the Court's doctrine is likely to move in the direc-tion of  accommodation except in cases involving egregious Establish-ment Clause violations, so that uncertainties might be expected to be re-solved in the accommodationist's favor. Whether disclaimers or signssucceed in practice is another matter, but the accommodationist wouldargue that either is worth a try.

Can the Accommodationist Achieve Pluralism?

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Can the Accommodationist Achieve Pluralism?

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