Merry “Secular Folk Holiday”

The nativity scene pictured above looks typical.  The blessed Mary is gazing adoringly upon the baby Jesus with Joseph, the Wise Men, and the shepherds by her side.  There is something distinctly different about this crèche, at least according to the Supreme Court.  For this crèche hails from the shopping district of Pawtucket, Rhode Island.  It was paid for and maintained by public funds, which led to an Establishment Clause lawsuit. While it might seem obvious to you that a nativity scene is a religious symbol, the Supreme Court thought otherwise.

During oral argument at the Supreme Court, the city attorney for Pawtucket argued that Christmas had become a “secular folk holiday,” not a religious one.  The attorney also argued that that the promotion of religion through the crèche was “overwhelmed by secular” displays – including figures of Santa Claus and his reindeer, a Christmas tree, a banner reading “Season’s Greetings,” images of carolers, and (somewhat bizarrely) a clown and an elephant.

The Supreme Court’s opinion in Lynch v. Donnelly largely adopted the city’s position. Chief Justice Burger argued that the benefit to religion is only “indirect, remote, and incidental” because of the context in which the crèche is displayed and because it is a “passive symbol.”

There are two ways to interpret Burger’s opinion, either his rationale was a ruse or he sincerely believed that a few secular objects could overwhelm the religiosity of a nativity scene.  If the former is true, a fraud upon the Establishment Clause has been committed.  I have written a paper that considers the implications of the second conclusion.  Here’s the abstract:

Over the past 25 years, federal courts have sanctioned displays of religious symbols on public property – including the crèche, the Ten Commandments, and the Latin cross – by privileging their secular value or because nearby secular symbols wash away their religiosity.  This paper contends that these cases have resulted in government secularization of the religious.  Though the appearance of religion has increased in the Public Square, this effort has been partially self-defeating because the distinctive substance of religion has been eroded by this jurisprudence, thereby weakening the sanctity of religion.  Minimizing the religious import of these symbols makes dialogue over the proper reach of the Establishment Clause effectively impossible.

I will leave the last word on this issue to Justice Harry Blackmun, who wrote a stinging dissent in Lynch.  (Twenty years later, Justice Scalia adopted a very similar position concerning Texas’ attempt to secularize the Ten Commandments.)  Blackmun writes:

The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part.  The city has its victory – but it is a Pyrrhic one indeed…Surely this is a misuse of a sacred symbol.

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Media and misinformation

A new survey is out from World Public, which contains some depressing, though unsurprising findings concerning political misinformation.  Voters tend to be misinformed overall, and misinformation tends to be filtered through partisan lenses.

For example, two-thirds of Republicans wrongly believed that the economic stimulus bill contained no tax cuts, compared with less than half of Democrats.  On the other hand a majority of Democrats incorrectly believe that President Obama has not increased U.S. troop presence in Afghanistan, compared to two out of five Republicans.

What force could be driving political misinformation?  The study has some provocative findings concerning the correlation between media exposure and misinformation.

Those who watched Fox News almost daily were significantly more likely than those who never watched it to believe that:

  • most economists estimate the stimulus caused job losses (12 points more likely)
  • most economists have estimated the health care law will worsen the deficit (31 points)
  • the economy is getting worse (26 points)
  • most scientists do not agree that climate change is occurring (30 points)
  • the stimulus legislation did not include any tax cuts (14 points)
  • their own income taxes have gone up (14 points)
  • the auto bailout only occurred under Obama (13 points)
  • when TARP came up for a vote most Republicans opposed it (12 points)
  • and that it is not clear that Obama was born in the United States (31 points)

These effects increased incrementally with increasing levels of exposure and all were statistically significant. The effect was also not simply a function of partisan bias, as people who voted Democratic and watched Fox News were also more likely to have such misinformation than those who did not watch it–though by a lesser margin than those who voted Republican.

Many on the left are crying that this study proves that watching Fox News makes people dumber.  This is not a valid conclusion to make.  First of all, MSNBC viewers also tended to be more misinformed on other issues, though these effects are more limited in comparison.  Second, the authors of the study are pointing out a correlation; they are not making a causal argument.  Third, this study measures misinformation, not intelligence.  All it indicates is that Fox News and MSNBC may be biased (shocking, I know).

This does not mean these findings sit well with me.  Political knowledge rates are abysmally low in this country, which has corrosive effects on political participation rates.  Public knowledge of the Constitution is also pathetic – more individuals can name the Three Stooges than can name the three branches of government.

Spinning issues through partisan filters is an American tradition, but I would remind pundits from both parties to heed the warning of Daniel Patrick Moynihan: “Everyone is entitled to his own opinion, but not his own facts.”

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On methodological common ground

My good friend Hans Hacker has written an excellent post regarding the methodological divide in public law.  Qualitative and quantitative accounts of courts have a similar objective:

Political scientists really do prefer that their theories reflect (to the extent possible) the reality that confronts them. So, we began to look more closely at what amounts to . . . stories. And, we used the themes emerging from those stories to tell a better story ourselves using statistical methods. Or, as a social scientist might put it, our theories attempt to connect facts, interpret them, and uncover their relationships to reflect what we see happening in the world. This is the same basic goal of story-telling.

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Hello world!

Welcome to Footnote 11, a blog located at the intersection of law and social science.  My goal for this blog is to tackle issues in law and political science in a thought-provoking and evidence-driven way.  I hope to write one post or so per week.

I believe introductions are in order.  My name is William Blake, and I am a graduate student in the Government Department at the University of Texas at Austin.  It should come as no surprise that my concentration is in public law.  You can read more about me at my website.

The name of this blog comes from Footnote 11 of the Supreme Court case Brown v. Board of Education, decided in 1954.  The footnote references several psychology and sociology studies as evidence that racially separate schools impeded the cognitive and emotional development of black students.  Chief Justice Earl Warren has been criticized for basing so much of his opinion on these studies, but as a future social scientist, I vehemently disagree.  Judges are, to a certain extent, policymakers, and it would behoove judges to consider objective social science evidence to understand more fully the implications of their decisions.

More information about Footnote 11 is available on the About page.

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