Should Liberty Counsel be through in Viroqua?

Professor McAdams at Marquette Warrior and Peter DiGuadio at Texas Hold 'em have commented extensively on the decision by the Viroqua (Wis.) High School to cancel its planned "Diversity Day." The day would have included speakers who were Hmong, Jewish, Muslim, American Indian, African American, Latino, Buddhist,physically disadvantaged, poor and, most notably for our purposes, gay. The idea was to provide students an opportunity to "come into contact with people of different backgrounds."

When requested to include speakers who would present a traditional Christian perspective on homosexuality (including, apparently, an "ex-gay"), the School initially refused. You ought not get carried away with this diversity stuff. After they were told by a public interest law firm called Liberty Counsel that this would be sort of completely unconstitutional (and confirming that with their own lawyers), they decided to call the whole thing off. Some backgrounds, the school believes, are better left "uncontacted." “Non-positive groups were not what we were going for,” said Ellen Byers, an English teacher on the planning committee.

I'm not going to repeat what others have said about how close-minded this is, but I do want to suggest that cancelling the event does not solve the constitutional problem.

Our Supreme Court has declared that government messages about religion must be neutral. It has insisted that the state refrain from "endorsing" religion or irreligion so as not to make nonadherents feel like outsiders, "disfavored members of the political community."

(Faithful readers of this blog will know that I chase this endorsement test, about which I just finished an article, like Ahab sought the white whale.)

You can violate this indirectly. You can violate neutrality by what you don't teach. In Epperson v. Arkansas, the Court held that an Arkansas law forbidding the teaching of evolution violated the establishment clause because it was motivated by the religious beliefs of creationsist. Prohibition was not religiously neutral.

What was the motivation for the cancellation of the Viroqua event? What message did it send to traditional Christians about how the state views them? Doesn't it say that they are regarded as so odious that an otherwise desireable pedagogical event must be cancelled rather than include them? That their views are "nonpositive?" Won't this - doesn't this - make them feel like outsiders and disfavored members of the political community?

There are all sorts of prudential - and even some legal - reasons for declaring victory and going home. But if rigorous neutrality with respect to religion is required, Viroqua has fallen short.