Tag Archives: Establishment Clause

Ssh! We’re “reflecting.”

According to the Houston Chronicle, the U.S. Court of Appeals for the Fifth Circuit this week heard oral argument on whether Texas’s school “moment of silence” law violates the Establishment Clause:

U.S. District Judge Barbara Lynn upheld the constitutionality of the law last year [….] The Crofts, of Carrollton, Texas, appealed Lynn’s ruling. On Tuesday, a three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments from lawyers on both sides of the case. […]

In 2003, state lawmakers amended an existing law that already allowed schools to hold a moment of silence to specify that students can use the time to “reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student.”

[…]

Texas Solicitor General James Ho, who handles appeals for Attorney General Greg Abbott, said lawmakers included the word “prayer” to avoid confusion.

Judge Fortunato Benavides said advocates on both sides of the issue tend to distort the implications of laws governing school prayer.

“I can see why the Legislature might think that it might be important to let people know what they can do and put it in the form of a statute,” he said.

[…]

Ho and Cook both cited prior rulings by the U.S. Supreme Court to support their positions. Cook said the justices struck down an Alabama law that mirrors Texas’ minute-of-silence statute.

“By amending (the law) to include the word ‘pray,’ the Legislature, whether intentionally or otherwise, has advanced religion,” he wrote in court papers.

Ho said Alabama lawmakers had enacted their law “for the express purpose of defying the U.S. Supreme Court,” whereas sponsors of the Texas law wrote theirs in a way that would pass constitutional muster.

These statutes have always amazed me.  For nearly 50 years, the Supreme Court has held that teacher or administrator-led (or teacher or administrator-endorsed) school prayer (or school prayer disguised as a moment of silence) is unconstitutional.  To me, a school leading a prayer (even a nondenominational-ish prayer) is one of the worst kinds of establishment. It’s a government official endorsing religion (and often one religion over another), compelling kids (who likely do not yet have well-developed ideas about God) to engage in a particular religious practice, usurp parental authority on one of the most critical choices in child rearing, and create unnecessary tensions between student and teacher, peer and peer, and even religion and religion.  Likewise, though, the Supreme Court has been very clear that kids don’t lose the rights to their own, particular faith at the schoolhouse door.  Kids are more than welcome to pray (pretty much whenever they want), out loud or silently, in groups or individually.

Nonetheless, legislatures continue to believe, apparently, that kids do not have enough opportunity to pray at school on their own, and so they enact statute after statute mandating “moments of silence.” Most of the ordinances challenged fail, often because the legislature (like the Texas legislature here) enumerates that kids can pray during the moment of silence.  The cases often turn on whether the legislature had the “purpose” of promoting religion (or one religion over another) when enacting the statute.

From a legal perspective, why is “purpose” paramount?  If the legislation is truly neutral (that is, kids can do whatever they want, so long as they do it quietly) who cares if the legislators “hope” that more students pray? Is it that the implication is you’re “supposed” to pray? Or that you should feel bad if you don’t pray? That seems to be more of a question of implementation (that is, whether the school says something like “now take this moment of silence for reflection, OR TO PRAY, or to sit quietly in preparation for the day…”) rather than enaction of the statute.

But from a practical perspective, why do legislators continue to pass statutes like this?  Kids who will want to pray will.  They’ll do it when they get to their seats, right before the big test (when even non-religious kids may say a word or two), before lunch, at a Fellowship of Christian Athletes meeting, at a student-run bible study… whenever they feel compelled to.  Students who don’t want to pray won’t, unless the government compells them (a clear violation of the Establishment Clause…. well, at least at the time of this writing.) I’ve never heard a high school student, much less an elementary student ever saying “man, if I just had more time to pray,” or “man, if I just had 45 seconds at the beginning of the day to ‘reflect,’ I’m sure my studies would be better.” And have these legislators ever been to a school and sat in a room where kids are supposed to be quiet?  Like a study hall, or a classroom where people are taking a test? Half the kids are just trying to break the silence one way or another.  Rather than starting the day well, my guess is that the “prayer kids” will just be harassed by the “non-prayer kids,” the “silence” will routinely be broken (by jokesters, by kids’ cell phones, or by other kids texting away), and everyone will just be more stressed.

Regardless of the constitutionality of this particular statute (which appears to be suspect to me, based upon the drafted language), I wish state legislatures had better things to do than to mandate when and where kids have to be quiet (or mandate who has to pray and when).

I look forward to all reasonable comments.

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Virginia state preachers free to preach… er, so long as they’re not Muslim

According to this report, the Virginia House of Delegates has approved a bill that removes a restriction previously requiring that chaplains for Virginia state police offer “ecumenical, non-denominational prayers” at official events.

Backers of the bill said it restored the chaplains’ right to religious freedom. But opponents said the bill violates the First Amendment by having the state advocate one specific religion.

[…]

Del. Charles W. Carrico, a retired State Police trooper, drafted the bill after State Police Superintendent W. Steven Flaherty issued a directive to chaplains to offer generic prayers at department-sponsored public events such as graduations from the trooper training academy.

“I do not want to interfere with anyone else’s religion. I am a Christian and I will profess that,” said Carrico, R-Grayson. “The Christian faith happened to be the one under attack when this came about.”

Flaherty issued the guidance in response to a 2008 federal appeals court ruling upholding a Fredericksburg City Council policy against opening council meetings with prayers that mention Jesus.

The directive does not apply to chaplains in private venues such as funerals or in counseling grieving troopers or their loved ones.

[House Majority Leader H. Morgan] Griffith called opponents’ use of the same constitutional free-worship guarantees to argue that the bill is an impermissible state intrusion into religion “Orwellian doublespeak.”

Del. Adam Ebbin, D-Alexandria, said the bill blurs the distinction “between state-endorsed religion vs. the exercise of free religion by individuals.”

Ebbin, who is Jewish, said that when he attends a Christian church, he expects to hear prayers in Christ’s name and accepts them.

“When I go to a public event in a public-sanctioned forum, I do not expect to be excluded,” Ebbin said.

The bill is not that surprising, and will probably never be enacted, as Virginia Gov. Tim Kaine will likely veto it, and even if he didn’t, it would likely be ruled unconstitutional anyway during the lawsuit that the ACLU has threatened.

First Amendment law professor Kathleen Bergin caught this article, and not so much for the law as the response by one dissenting, Democratic delegate:

Del. Lionel Spruill, who opposed the bill, made his disdain for Islam clear in a floor speech. In making a point about observing diverse religious traditions, he said Muslim relatives who visit his Christian church are asked to remove their traditional head coverings.
[…]

He said he has no problem with most clergy who offer the daily invocation at the start of each House session.

“From time to time we have certain people who come here, certain people who pray here, and depending on who it is, I’ll walk out that door, especially those in the Muslim faith I don’t care too much about,” he said.

Professor Bergin’s response:

Spurill’s vote against the bill wasn’t rooted in a concern about the crumbling wall that’s supposed to separate church from state, or protecting the state from the inevitable ACLU suit that would follow passage of the bill, but the mere prospect of including an Imam at an official police event.

[…]

I don’t understand why this part of the story hasn’t gotten more coverage (ok, so I do), but could we ever imagine an elected state official making such remarks about any other religion, and having it go virtually unnoticed in the national press?

Indeed, Delegate Spurill’s comments are awful, but they are a true example of exactly why the Establishment Clause exists to keep religion out of government.  (Interestingly, one could also use his comments as evidence for the other side–that if a chaplain comes to deliver a prayer that any particular state official or police officer disagrees with, he or she could just step out into the hallway.  Of course, it doesn’t often work that way.)

But this statute is also a poignant example of the “unseen” half of the Establishment Clause.  The Establishment Clause works not only to keep religion out of government, but also to keep government out of religion.  Because the Virginia state patrol has chaplains, it must pass regulations deciding to whom those chaplains may (or may not) pray at official functions, to avoid endorsing a religion and violating the First Amendment.  Yet, in doing so, the state “waters down” the practice of many of those chaplains’ faiths, at least in their official capacity.  This is why the original Lemon v. Kurtzman court was concerned about “excessive entanglement” with religion (although modern courts have shrugged off that concern). How can you have chaplains providing faith services to civil servants when the government commands what the scope of those services can be? Do the chaplains truly have a Free Exercise right to say “in the name of Jesus, Amen”? Is watered down prayers to the “Almighty Creator” better than no prayers at all? Are non-Christian police officers part of the “outgroup” when an “Endorsed” chaplain proselytizes? Or is it the chaplain’s “freedom of conscience” that is violated? And what about minority religious figures?  It seems that every time the government gets this involved in providing some sort of “religious tone”-especially before “official events,” this stuff happens.  There are no easy answers to these questions.  And it appears that Pres. Obama hasn’t learned this lesson, either.

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Afghanistan newspaperman charged with blasphemy & lessons learned by Bush?

Professor Friedman’s Religion Clause blog has this report from the AFP:

[I]n Afghanistan, the editor of a small Kabul newspaper, Payman Daily, was arrested Tuesday on blasphemy charges. A a council of Islamic clerics and a government media disciplinary commission found that an article the newspaper published was “an insult to Islam.” The article, not written by the newspaper staff but was taken from an Afghan website, argued that no religion– including Islam– was divinely revealed. The paper, even before the editor’s arrest, had apologized for publishing the article. Punishment for blasphemy can range from a reprimand to the death penalty.

One day later, in his farewell address, President Bush had this to say about his perceived success in Afghanistan:

Afghanistan has gone from a nation where the Taliban harbored Al-Qaeda and stoned women in the streets, to a young democracy that is fighting terror and encouraging girls to go to school.”

I guess I have a few thoughts:

  • No matter how bad it gets in the U.S.  No matter how much civil rights groups complain about the “police state” that America has become.  No matter how much religious separatist groups complain that the First Amendment Establishment Clause has been trampled upon, we’re not Afghanistan.  In America, you can seriously, honestly debate fundamental truths of existence (such as whether democracy is the best form of government, whether God exists, whether war is justified) whether or not your ideas are serious or based in reality (like whether global warming is real, whether aliens are running the government, or Elvis is alive) and you won’t be charged with “sedition” or “blasphemy” or any other crime created by governments frightened of their own people and new ideas.  Of course, if you act on some of those ideas (by, say trying to overthrow the government by military force) you may not be so lucky.  But, except for direct threats to public officials’ lives, in America, you pretty much cannot be imprisoned for what you say, or what you repeat. And even if we are descending into a “police state,” we are a long way from having clerics charge our newspaper writers with blasphemy.
  • It’s a shame that President Bush doesn’t realize the difference between what American democracy is and what the Afghan state is like.  Bush specifically noted that women were being “encouraged” to get an education in Afghanistan, when, just a few days earlier, came reports of girls who had acid thrown in their face because they attempted to attend school. And this newspaper editor is not being harassed by terrorists; he’s being charged, formally, pursuant to the law that is currently in effect.  State-sponsored persecution based upon a challenge to a religious belief.  Is that a successful campaign in nationbuilding in Afghanistan?

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“I don’t know how God can offend anybody,” New Jersey town wins Establishment Clause “No Doi” award

From the Poccino Record:

A nearly six-decade tradition of reciting the Lord’s Prayer at the start of Town Council meetings has ended.

The tradition, begun in 1952, stopped Monday night after a single resident’s objection. It’s the end of a popular tradition that pleased more than it dismayed, according to the five council members, all of whom described themselves as saddened by the change but resigned to the realities of court precedent.

“According to our counsel, (the prayer) is a violation of the First Amendment,” said Councilwoman Helen LeFrois.

No doi. But the article gets better:

It’s not the first time the Lord’s Prayer has been publicly questioned in Newton. In March 1995, the council began debating the values of switching the tradition to a secular prayer because a Jewish councilman, Robert Shapiro, had been elected to the council.

Shapiro adamantly supported the Lord’s Prayer tradition [?!??-ed.] and the recitation continued. Shapiro, who now lives in Florida, said he was disappointed to hear the controversy being brought up again.

“These are the traditions our country is founded upon,” he said, citing the mottos that dot U.S. government buildings — and even its currency.

“It says, ‘In God We Trust.’ That’s a lot older than the Newton Town Council,” Shapiro said.

[Actually, “In God We Trust” as the “U.S. Motto” is not older than the Newton Town Counsel, unless TV is older than the Newton Town Counsel, and it is not older than the city, which has a “rich historic heritage dating back to 1751“. – ed.]

Ray Storm, a three-time Newton mayor and four-term councilman, said he was discouraged by the abandonment of tradition, even if it was due to court precedent.

“In my mind, I don’t know how God can offend anybody,” Storm said. [No comment. –ed.]

I am not intending to demean anyone’s religion, or their particular view of God.  But the recital of the prayer Jesus taught while hanging on the cross, slowly dying at the hands of the Romans and Jews, is sectarian.  The leaders of the town are calling upon a particular God to give them particular guidance on governmental powers is nearly as close to “establishment of religion” as you can get.  While there may be a zone of religious activity permissible by the Constitution–in fact, the counsel members may even have a First Amendment Free Exercise right to provide personal declarations of faith, a Christian prayer before a counsel meeting doesn’t fit.  It’s actions like this that bring counter-actions, like Michael Newdow’s latest suit to stop President-Elect Obama from saying “so help me God” during the inauguration.  More on that action later.


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