I understand that Professor Esenberg rejects Justice O'Connor's endorsement analysis, but it still isn't clear to me what he is offering as an alternative. If the argument is that it is improper to draw any boundaries between the religious and the secular in interpreting the religion clauses, I think that empties both clauses of substantive content. A classic establishment clause violation, such as compulsory attendance at a religious service, requires drawing a distinction between the religious (the service) and the secular (a court room or a math class).
If he is suggesting that the majority should be free to commandeer government resources for the purpose of promoting and influencing the religious beliefs of citizens about "worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d" to the same extent that government uses its resources to communicate messages about patriotism, military service, public health, civil rights and a host of other value-based subjects, I disagree with his conclusions about the consequences of such action. I think we would have far less substantive neutrality and far more bitter divisions along religious lines than we do now -- and the degree to which people felt that they were being treated disrespectfully as religious outsiders (or favored as religious insiders) would increase dramatically. He may have a different line to propose. But if his line would allow government decision makers (on a city council) to insist that citizens stand in respectful attendance while a sectarian prayer is recited before they can present their concerns to the council at a public meeting, I think that line does far more than raise the bar on religious inequality and status harms. It also tolerates religious coercion. Alan Brownstein UC Davis School of Law -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, July 24, 2008 3:02 PM To: Law & Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' Professor Brownstein writes: Indeed, it is hard to imagine how t! he religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d. That is one way in which they can operate and it is the way we have chosen. The problem, of course, is that it doesn't reflect the way many religious believers feel that their lives ought to be lived. Because of that, it is a way that cannot accomplish our more ambitious objectives. It can't, as Justice O'Connor wished, keep all from feeling like religious outsiders. It can't achieve substantive neutrality. It can't even, as we have seen, avoid substantial division along religious lines. What it can do is enforce a particular view of the relative domains of the religious and the secular. One of the reasons that those lines have to be drawn in that way is the relatively low bar we have set for religious insult, e.g., Justice Kennedy's view that it was "too much" to ask Deborah Weissman to sit through a nondenominational prayer . Were we to apply that same degree of sensitivity to persons who must sit through, say, state sponsored speech promoting some set of views that, while not expressly religious, contradict the foundation of that persons religious beliefs, e.g., a program on the normative nature of homosexuality or a class on values clarification or some such thing, government as we have come to know it couldn't operate. One resolution may be to raise the bar for religious insult. If we can't protect religious outsiders from insult, then perhaps we ought not to try by imposing a particular view of the proper boundaries between the religious and the secular. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] ________________________________ ________________________________________ From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Brownstein, Alan [EMAIL PROTECTED] Sent: Thursday, July 24, 2008 4:32 PM To: Law & Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' If I am reading Professor Esenberg's post correctly (and I am not sure that I am) he seems to be saying that government can never avoid speaking religiously. If that is his point, a lot depends on how one defines"speaking religiously." If speaking religiously includes saying anything that will "either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant," he is probably correct that government can seldom avoid speaking religiously -- but that is an extremely broad understanding of religion for constitutional purposes. Most of us do not think that government acts religiously whenever its decisions will "either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant." (I may be quite annoyed if my son's public school only offers ham and cheese sandwiches at the cafeteria for lunch, but I would not characterize that conduct as acting religiously.) Indeed, it is hard to imagine how t! he religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d. I certainly agree that religion clause jurisprudence represents compromises among competing constitutional values -- and that these compromises can never be entirely free from costs. Still, prohibiting prayer (sectarian or otherwise) at a city council meeting, where the governing body typically engages in both legislative and administrative functions and individuals often ask the council directly to exercise power on issues that may impact a very small class or even a single person, should be an easy case. Under an endorsement test or a coercion test, government prayer in this context should be unconstitutional. Alan Brownstein UC Davis School of Law -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, July 24, 2008 12:54 PM To: Law & Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' I agree with Professor Gibson that faithful Christians can pray without invoking the name of Jesus and with Professor Lund that this seems like the correct result under existing law (even Justice Scalia might agee) and I appreciate Professor Laycock's invocation of the great Alexander Bickel. Wrong answers is what the wrong questions beget, One of my favorite phrases. But I wonder if the right question is whether government, as we know it in the 21st century, ever can avoid speaking religiously. While the monument questions don't put the question in the starkest form, the more things on which government chooses to speak, the more likely it is to either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. Government can, of course, avoid speaking in expressly sectarian terms, but the idea that this avoids (or even softens) the religious insult seems empirically wrong and rooted in a view of what religion is and where it ought to be allowed that is itself not religiously neutral. Maybe that resolution - itself a very liberal protestant denouement - is the best we can do, although the idea that this has resulted in less division and more liberty is not self evidently true. But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' name really ought to constitute an establishment of religion. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] ________________________________ From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Wednesday, July 23, 2008 7:15 PM To: religionlaw@lists.ucla.edu Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' Well actually, the court of appeals did not ban prayer in Jesus' name. Nor did the City of Fredericksburg ban prayer in Jesus' name. Prayer in Jesus' name is continuing all over the city. The City said it would not sponsor prayer in Jesus' name; if anything was "banned," it was only at official city functions where the City controlled the agenda and thus controlled whether there would be a prayer at all. I agree that this is a very awkward decision. But it is the inevitable result once we start down the path of allowing government-sponsored prayers. Wrong answers is what the wrong questions beget, and when the answer is that the best solution is to restrict the religious content of prayers, the system has asked the wrong question. The only way to fix this is to reconsider Marsh v. Chambers. Quoting Gordon James Klingenschmitt <[EMAIL PROTECTED]>: > Press release below. Please forward widely. Please call for interviews! > In Jesus, > Chaplain K. > ------------------------ > > Appeals Court Bans Prayer 'In Jesus' Name' > > Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org, > 719-360-5132 cell, [EMAIL PROTECTED] > > WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court > of Appeals today ruled that the city council of Fredericksburg, > Virginia had proper authority to require "non-sectarian" prayer > content and exclude council-member Rev. Hashmel Turner from the > prayer rotation because he prayed "in Jesus' name." > > Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said: > "The restriction that prayers be nonsectarian in nature is designed > to make the prayers accessible to people who come from a variety of > backgrounds, not to exclude or disparage a particular faith." > > Ironically, she admitted Turner was excluded from participating > solely because of the Christian content of his prayer. > > A full text copy of the decision, with added commentary by Chaplain > Klingenschmitt is here: > www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf > > Gordon James Klingenschmitt, the former Navy chaplain who faced > court-martial for praying "in Jesus name" in uniform (but won the > victory in Congress for other chaplains), defended Rev. Hashmel > Turner: > > "The Fredericksburg government violated everybody's rights by > establishing a non-sectarian religion, and requiring all prayers > conform, or face punishment of exclusion. Justice O'Connor showed her > liberal colors today, by declaring the word 'Jesus' as illegal > religious speech, which can be banned by any council who wishes to > ignore the First Amendment as she did. Councilman Rev. Hashmel Turner > should run for mayor, fire the other council-members, and re-write > the prayer policy. And if he appeals to the Supreme Court, I pray he > will win, in Jesus' name." > > For media interviews, call: > Chaplain Klingenschmitt 719-360-5132 cell > Email: [EMAIL PROTECTED] > Web address: www.PrayInJesusName.org > > > > Source: > http://christiannewswire.com/news/558917273.html > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
