I think that the denigration of Rick and his original post has gone a
bit overboard.
As I understand the facts (and I could be wrong), the students voted
on a graduation speaker and that speaker planned on including a prayer
as part of her speech. In an injunction based on a suit filed only
days before, the judge prohibited the student from praying.
Apparently prayers were a traditional part of the ceremony, but it's
not clear how they took place.
But taking the facts as known, I am not at all convinced that the
Court's establishment clause jurisprudence forbids all prayers by
invited private speakers (including students) at school events. Could
she have been held in contempt if she declared "God have mercy on the
souls of those killed in Iraq"? It seems to me that when the
government opens a space for private speech, forbiding private
speakers from engaging in "religion talk" raises serious First
Amendment issues.
It begs the question to assert "tyranny of the majority." As I tell
my students, the only thing worse than a tyranical majority is a
tyrannical minority--or a single tyrant. The issue is whether a
supermajority of the people, at a moment in time, enshrined a
principle in our constitution which justifies the injunction in this
case. Unless I am wrong about the facts, I am not at all convinced
that it does.
The students' action/protest not only accepted (for the moment) the
court's ruling (no lynch mob here), I thougt its symbolism was quite
potent: "The courts cannot silence our private religious speech."
They may have acted from a religious/majoritarian impulse, but the
constitutional principle involved protects both the majority and
minority from unwarranted government censorship--whether by courts or
by school boards, and whether the speech is secular or religious.
Kurt Lash
Loyola Law School (L.A.)
PS: There is, of course, a serious issue regarding the degree to which
members of an an audience may prevent a speaker from speaking, or a
ceremony from taking place, through their disruptive protests--whether
religious or secular based. This issue, however, has nothing to do
with the establishment issues raised by those responding to Rick's
post.
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I see from earlier news stories that the student first asked the principal to
not schedule prayers at the graduation, and the principal refused. The prayers
objected to originally were clearly out of line under current case law. School
authorities shouldn't be in the business of telling kids when to pray -- and is
that not exactly what scheduling prayers is?
Rick, is there any reason this group shouldn't be compared to the lynch mob
that goes after a suspected horse thief? The fellow may be guilty, and a court
can determine that later -- but lynching is illegal, and shouldn't we trust to
the courts to arrive at a near-just conclusion?
I graduated from a high school where I was one of 2 students -- about 1% of
the graduating class -- not of the predominant religion. I understand exactly
what the plaintiff in the case complained about. It's scary that a ruling from
a federal court is not enough to preserve religious rights against a mob. I'm
deeply troubled by that.
Ed Darrell
Dallas
Rick Duncan <[EMAIL PROTECTED]> wrote:
Here is the way I look at it. "One poor kid" tried to censor his classmates
with the help of a powerful legal ally, the ACLU.
His classmates did not like being silenced by the "poor kid." So they made a
stand--not to ostracize the poor kid, but to stand up for their liberty of
religious expression at their own commencement. They did not violate the spirit
of the EC. The spirit of the EC deals with government coercion and religion.
The true spirit of the Religion Clause is on the side of the students who would
not be cowed and silenced by the ACLU and the unelected judiciary.
I am proud of these kids. I hope their spirit spreads to many other schools
and impacts many other commencements. There is no need to ask school officials
to sponsor prayer. All students need to do is pray: without asking for
endorsement or permission from government authorities.
Cheers, Rick Duncan
[EMAIL PROTECTED] wrote:
Some info from the involved ACLU affiliate is at this link:
http://www.aclu-ky.org/news.html#Grad%20Prayer
That info includes the following paragraph:
"School-sponsored prayer constitutes a symbolic and tangible âpreferenceâ¦
given by lawâ to a religious sect by exalting it over contrary religious
beliefs deemed less worthy of government endorsement,â the ACLU argues in the
court papers. âIt compels attendance at a place of worship by conditioning
participation at public graduation ceremonies on acceptance of prayer at those
ceremonies.â
I don't see how having a student body election for "graduation chaplain" as I
saw described in this Kentucky case cures the problem post Lee and Santa Fe. I
don't know why anyone would cheer the ostracism of some poor kid at his own
high school graduation. With all due respect to Prof. Duncan, that doesn't
sound like "religious liberty" to me.
Allen Asch
In a message dated 5/23/2006 10:14:01 AM Pacific Standard Time, [EMAIL
PROTECTED] writes:
For a somewhat different take on this, see my Religion Clause blog post
titled âLooking for Establishment Clause Loopholesâ at
http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html
*************************************
Howard M. Friedman
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390
Phone: (419) 530-2911, FAX (419) 530-4732
E-mail: [EMAIL PROTECTED]
*************************************
---------------------------------
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Tuesday, May 23, 2006 12:04 PM
To: Law & Religion issues for Law Academics
Subject: Teenagers &The Spirit of Liberty
Link (See also link)
Excerpt from the second link):
High School Students Defy ACLU and Court
May 20, 2006 01:43 PM EST
By Sher Zieve â Despite U.S. District Judge Joseph McKinleyâs ruling
that no prayer was to be allowed at Kentuckyâs Russell County High School
commencement ceremonies, at least 200 students recited the Lordâs Prayer
during the ceremony. The ACLU had argued to have prayer banned at graduation,
due to a complaint from 1 student.
Thunderous applause is said to have broken out towards the end of the
prayer and senior Megan Chapman continued with her praise, when she said that
her fellow students should trust God as they continue their lives after high
school.
Chapman commented "It [the prayer] made the whole senior class come together as
one and I think that's the best way to go out", then added: "More glory went to
God because of something like that than if I had just simply said a prayer like
I was supposed to."
Every year in May there are stories of liberty like these.
I love it when young men and women take a stand for free speech and
religious liberty!
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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messages to others.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many of us doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence."
--J. Budziszewski (The Revenge of Conscience)
"Once again the ancient maxim is vindicated, that the perversion of the best
is the worst." -- Id.
---------------------------------
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<div>I see from earlier news stories that the student first asked the principal
to not schedule prayers at the graduation, and the principal refused. The
prayers objected to originally were clearly out of line under current case
law. School authorities shouldn't be in the business of telling kids when
to pray -- and is that not exactly what scheduling prayers is?</div>
<div> </div> <div>Rick, is there any reason this group shouldn't be
compared to the lynch mob that goes after a suspected horse thief? The
fellow may be guilty, and a court can determine that later -- but lynching is
illegal, and shouldn't we trust to the courts to arrive at a near-just
conclusion?</div> <div> </div> <div>I graduated from a high school where
I was one of 2 students -- about 1% of the graduating class -- not of the
predominant religion. I understand exactly what the plaintiff in the case
complained about. It's scary that a ruling from a federal
court is not enough to preserve religious rights against a mob. I'm
deeply troubled by that.</div> <div> </div> <div>Ed Darrell</div>
<div>Dallas<BR><BR><B><I>Rick Duncan <[EMAIL PROTECTED]></I></B>
wrote:</div> <BLOCKQUOTE class=replbq style="PADDING-LEFT: 5px; MARGIN-LEFT:
5px; BORDER-LEFT: #1010ff 2px solid"> <DIV>Here is the way I look at it. "One
poor kid" tried to censor his classmates with the help of a powerful legal
ally, the ACLU.</DIV> <DIV> </DIV> <DIV>His classmates did not like
being silenced by the "poor kid." So they made a stand--not to ostracize the
poor kid, but to stand up for their liberty of religious expression at their
own commencement. They did not violate the spirit of the EC. The spirit of the
EC deals with government coercion and religion. The true spirit of the
Religion Clause is on the side of the students who would not be cowed and
silenced by the ACLU and the unelected judiciary. </DIV>
<DIV> </DIV> <DIV>I am proud of these kids. I hope their spirit spreads
to many other schools and impacts many other commencements. There is no need to
ask school officials to sponsor prayer. All students need to do is
pray: without asking for endorsement or permission from government
authorities.</DIV> <DIV> </DIV> <DIV>Cheers, Rick
Duncan<BR><BR><B><I>[EMAIL PROTECTED]</I></B> wrote:</DIV> <BLOCKQUOTE
class=replbq style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff
2px solid"> <META content="MSHTML 6.00.2900.2873" name=GENERATOR><FONT
id=role_document face=Arial color=#000000 size=2> <DIV> <DIV>Some info from
the involved ACLU affiliate is at this link:</DIV> <DIV> </DIV>
<DIV><A
href="http://www.aclu-ky.org/news.html#Grad%20Prayer";>http://www.aclu-ky.org/news.html#Grad%20Prayer</A></DIV>
<DIV> </DIV> <DIV>That info includes the following paragraph:</DIV>
<DIV> </DIV> <DIV><FONT face="Courier
New">"School-sponsored prayer constitutes a symbolic and tangible
âpreference⦠given by lawâ to a religious sect by exalting it over
contrary religious beliefs deemed less worthy of government endorsement,â the
ACLU argues in the court papers. âIt compels attendance at a place of
worship by conditioning participation at public graduation ceremonies on
acceptance of prayer at those ceremonies.â</FONT></DIV> <DIV> </DIV>
<DIV>I don't see how having a student body election for "graduation chaplain"
as I saw described in this Kentucky case cures the problem post <EM>Lee
</EM>and <EM>Santa Fe</EM>. I don't know why anyone would cheer the ostracism
of some poor kid at his own high school graduation. With all due respect to
Prof. Duncan, that doesn't sound like "<FONT face="Times New Roman"
size=3>religious liberty</FONT>" to me.</DIV> <DIV> </DIV> <DIV>Allen
Asch</DIV> <DIV> </DIV> <DIV> </DIV> <DIV>In a message dated
5/23/2006
10:14:01 AM Pacific Standard Time, [EMAIL PROTECTED] writes:</DIV>
<BLOCKQUOTE style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: blue 2px
solid"><FONT style="BACKGROUND-COLOR: transparent" face=Arial color=#000000
size=2> <DIV class=MsoNormal><FONT face=Arial color=navy size=2><SPAN
style="FONT-SIZE: 10pt; COLOR: navy; FONT-FAMILY: Arial">For a somewhat
different take on this, see my Religion Clause blog post titled âLooking for
Establishment Clause Loopholesâ at<?xml:namespace prefix = o ns =
"urn:schemas-microsoft-com:office:office" /><o:p></o:p></SPAN></FONT></DIV>
<DIV class=MsoNormal><FONT face=Arial color=navy size=2><SPAN style="FONT-SIZE:
10pt; COLOR: navy; FONT-FAMILY: Arial"><A
title=http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html
href="http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html";>http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html</A><o:p></o:p></SPAN></FONT></DIV>
<DIV class=MsoNormal><FONT face=Arial color=navy size=2><SPAN
style="FONT-SIZE: 10pt; COLOR: navy; FONT-FAMILY:
Arial"><o:p> </o:p></SPAN></FONT></DIV> <DIV class=MsoNormal><FONT
face=Arial color=navy size=2><SPAN style="FONT-SIZE: 10pt; COLOR: navy;
FONT-FAMILY: Arial"><o:p> </o:p></SPAN></FONT></DIV> <DIV> <DIV><FONT
face=Arial color=navy size=2><SPAN style="FONT-SIZE: 10pt; COLOR: navy;
FONT-FAMILY: Arial">*************************************<BR><STRONG><B><FONT
face=Arial><SPAN style="FONT-FAMILY: Arial">Howard M.
Friedman</SPAN></FONT></B></STRONG> <BR>Disting. Univ.
Professor Emeritus<BR>University of <?xml:namespace prefix = st1 ns =
"urn:schemas-microsoft-com:office:smarttags" /><st1:place
w:st="on"><st1:PlaceName
w:st="on">Toledo</st1:PlaceName> <st1:PlaceType
w:st="on">College</st1:PlaceType></st1:place> of Law<BR><st1:place
w:st="on"><st1:City w:st="on">Toledo</st1:City>, <st1:State
w:st="on">OH</st1:State> <st1:PostalCode
w:st="on">43606-3390</st1:PostalCode></st1:place> <BR>Phone: (419) 530-2911,
FAX (419) 530-4732 <BR>E-mail: [EMAIL PROTECTED]
<BR>************************************* </SPAN></FONT><o:p></o:p></DIV></DIV>
<DIV> <DIV class=MsoNormal style="MARGIN-LEFT: 0.5in; TEXT-ALIGN: center"
align=center><FONT face="Times New Roman" size=3><SPAN style="FONT-SIZE: 12pt">
<HR tabIndex=-1 align=center width="100%" SIZE=2> </SPAN></FONT></DIV> <DIV
class=MsoNormal style="MARGIN-LEFT: 0.5in"><B><FONT face=Tahoma size=2><SPAN
style="FONT-WEIGHT: bold; FONT-SIZE: 10pt; FONT-FAMILY:
Tahoma">From:</SPAN></FONT></B><FONT face=Tahoma size=2><SPAN style="FONT-SIZE:
10pt; FONT-FAMILY: Tahoma"> [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
<B><SPAN style="FONT-WEIGHT: bold">On Behalf Of </SPAN></B>Rick
Duncan<BR><B><SPAN style="FONT-WEIGHT: bold">Sent:</SPAN></B> Tuesday, May 23,
2006 12:04 PM<BR><B><SPAN style="FONT-WEIGHT: bold">To:</SPAN></B> Law &
Religion issues for Law Academics<BR><B><SPAN style="FONT-WEIGHT:
bold">Subject:</SPAN></B> Teenagers &The Spirit of <st1:City
w:st="on"><st1:place
w:st="on">Liberty</st1:place></st1:City></SPAN></FONT><o:p></o:p></DIV></DIV>
<DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman"
size=3><SPAN style="FONT-SIZE: 12pt"><o:p> </o:p></SPAN></FONT></DIV>
<DIV> <DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT face="Times New
Roman" size=3><SPAN style="FONT-SIZE: 12pt"><A
title=http://www.courier-journal.com/apps/pbcs.dll/article?Date=20060520&Category=NEWS01&ArtNo=605200365&SectionCat=&Template=printart
href="http://www.courier-journal.com/apps/pbcs.dll/article?Date=20060520&Category=NEWS01&ArtNo=605200365&SectionCat=&Template=printart";>Link</A> (See
also <A title=http://www.theconservativevoice.com/article/14733.html
href="http://www.theconservativevoice.com/article/14733.html";>link</A>)<o:p></o:p></SPAN></FONT></DIV></DIV>
<DIV> <DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT face="Times New
Roman" size=3><SPAN style="FONT-SIZE:
12pt"> <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" size=3><SPAN
style="FONT-SIZE: 12pt">Excerpt from the second
link):<o:p></o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" size=3><SPAN
style="FONT-SIZE: 12pt"> <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV>
<DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman"
size=3><SPAN style="FONT-SIZE:
12pt"> <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><B><FONT face="Times New Roman" color=blue
size=3><SPAN style="FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: blue">High
School Students Defy ACLU and Court</SPAN></FONT></B><o:p></o:p></DIV></DIV>
<DIV style="MARGIN-TOP: 3pt"> <DIV class=MsoNormal style="MARGIN-LEFT:
0.5in"><I><FONT face="Times New Roman" color=blue size=3><SPAN
style="FONT-SIZE: 12pt; COLOR: blue; FONT-STYLE: italic"><!-- end.title --><!--
publish.date -->May 20, 2006 01:43 PM
EST</SPAN></FONT></I><o:p></o:p></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" size=3><SPAN
style="FONT-SIZE: 12pt"><!-- end.publish.date
--> <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" color=blue size=3><SPAN
style="FONT-SIZE: 12pt; COLOR: blue">By Sher Zieve â Despite U.S. District
Judge
Joseph McKinleyâs ruling that no prayer was to be allowed at <st1:State
w:st="on">Kentucky</st1:State>âs <st1:place w:st="on"><st1:PlaceName
w:st="on">Russell</st1:PlaceName> <st1:PlaceName
w:st="on">County</st1:PlaceName> <st1:PlaceType w:st="on">High
School</st1:PlaceType></st1:place> commencement ceremonies, at least 200
students recited the Lordâs Prayer during the ceremony. The ACLU had argued
to have prayer banned at graduation, due to a complaint from 1
student.</SPAN></FONT><o:p></o:p></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" color=blue size=3><SPAN
style="FONT-SIZE: 12pt; COLOR: blue">Thunderous applause is said to have broken
out towards the end of the prayer and senior Megan Chapman continued with her
praise, when she said that her fellow students should trust God as they
continue their lives after high school.<BR><BR>Chapman commented "It [the
prayer] made the whole senior class come together as one
and I think that's the best way to go out", then added: "More glory went to
God because of something like that than if I had just simply said a prayer like
I was supposed to."</SPAN></FONT><o:p></o:p></DIV></DIV> <DIV><!--
end.article-text --> <DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT
face="Times New Roman" size=3><SPAN style="FONT-SIZE:
12pt"><o:p> </o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" size=3><SPAN
style="FONT-SIZE: 12pt">Every year in May there are stories of liberty like
these. <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV class=MsoNormal
style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman" size=3><SPAN
style="FONT-SIZE: 12pt"> <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV>
<DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman"
size=3><SPAN style="FONT-SIZE: 12pt">I love it when young men and women take a
stand for free speech and
religious liberty! <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV> <DIV
class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT face="Times New Roman"
size=3><SPAN style="FONT-SIZE:
12pt"> <o:p></o:p></SPAN></FONT></DIV></DIV> <DIV class=MsoNormal
style="MARGIN-BOTTOM: 12pt; MARGIN-LEFT: 0.5in; MARGIN-RIGHT: 0in;
mso-margin-top-alt: 0in"><FONT face="Times New Roman" size=3><SPAN
style="FONT-SIZE: 12pt"><o:p> </o:p></SPAN></FONT></DIV> <DIV
id=RTEContent> <DIV> <DIV class=MsoNormal style="MARGIN-LEFT: 0.5in"><FONT
face="Times New Roman" size=3><SPAN style="FONT-SIZE: 12pt">Rick Duncan
<BR>Welpton Professor of <st1:PlaceName w:st="on">Law</st1:PlaceName>
<BR><st1:PlaceType w:st="on">University</st1:PlaceType> of <st1:PlaceName
w:st="on">Nebraska</st1:PlaceName> <st1:PlaceType
w:st="on">College</st1:PlaceType> of Law <BR><st1:place w:st="on"><st1:City
w:st="on">Lincoln</st1:City>, <st1:State w:st="on">NE</st1:State>
<st1:PostalCode
w:st="on">68583-0902</st1:PostalCode></st1:place><o:p></o:p></SPAN></FONT></DIV></DIV></DIV></FONT></BLOCKQUOTE></DIV>
<DIV></DIV>
<DIV> </DIV></FONT>_______________________________________________<BR>To
post, send message to Religionlaw@lists.ucla.edu<BR>To subscribe, unsubscribe,
change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<BR><BR>Please note
that messages sent to this large list cannot be viewed as private. Anyone can
subscribe to the list and read messages that are posted; people can read the
Web archives; and list members can (rightly or wrongly) forward the messages to
others.</BLOCKQUOTE><BR><BR><BR> <DIV id=RTEContent> <DIV>Rick Duncan
<BR>Welpton Professor of Law <BR>University of Nebraska College of Law
<BR>Lincoln, NE 68583-0902</DIV> <DIV> </DIV> <DIV><BR>"It's a funny
thing about us human beings: not many of us doubt God's existence and then
start sinning. Most of us sin and then start doubting
His existence." --J. Budziszewski (The Revenge of Conscience)</DIV>
<DIV> </DIV> <DIV>"Once again the ancient maxim is vindicated, that the
perversion of the best is the worst." -- <EM>Id.</EM></DIV></DIV> <div>
<HR SIZE=1> Ring'em or ping'em. Make <A
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Voice._______________________________________________<BR>To post, send message
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Web archives; and list members can (rightly or wrongly) forward the messages to
others.</BLOCKQUOTE><BR>
--Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg)--
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