Re: Lawsuit over student fees at Wayne State
Southworth v. Board of Regents requires viewpoint neutrality in these programs. Given that, any University that lets students distribute these funds on an ad hoc basis is hanging a big "Sue Me" sign on its back. Quoting Ed Brayton <[EMAIL PROTECTED]>: > A very interesting lawsuit has been filed by Students for Life, a recognized > student group, against Wayne State University over the denial of student > activity funds for a weeklong event the group wanted to put on. The obvious > precedent is Rosenberger, but I don't know if the facts fit perfectly here > (as, of course, they rarely do). Wayne State seems to have a slightly > unusual system for allocating those funds. Rather than giving the same > amount of funding to all recognized student groups, they have a system that > allows each group to request specific funding for a specific purpose - for > on campus events, travel to off campus conferences, for bringing a speaker > to campus, and so forth. But the by-laws forbid the use of funds for > "political advocacy" or to "advance religion." > > > > So under Rosenberger, are those two restrictions facially unconstitutional? > Or does the fact that it bans all political or religious advocacy across the > board without regard to the specific viewpoint change that conclusion? > Obviously, the case may well turn on a number of factual issues. First, the > request was for $4000, which is a large amount of money for such requests. > Second, has the Student Council approved other funds for events by other > groups that might be considered political advocacy? The complaint says that > the council has funded activities by pro-choice groups, but it contains no > specifics. This could be a very interesting case. > > > > Ed Brayton > > 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.
Lawsuit over student fees at Wayne State
A very interesting lawsuit has been filed by Students for Life, a recognized student group, against Wayne State University over the denial of student activity funds for a weeklong event the group wanted to put on. The obvious precedent is Rosenberger, but I don't know if the facts fit perfectly here (as, of course, they rarely do). Wayne State seems to have a slightly unusual system for allocating those funds. Rather than giving the same amount of funding to all recognized student groups, they have a system that allows each group to request specific funding for a specific purpose - for on campus events, travel to off campus conferences, for bringing a speaker to campus, and so forth. But the by-laws forbid the use of funds for "political advocacy" or to "advance religion." So under Rosenberger, are those two restrictions facially unconstitutional? Or does the fact that it bans all political or religious advocacy across the board without regard to the specific viewpoint change that conclusion? Obviously, the case may well turn on a number of factual issues. First, the request was for $4000, which is a large amount of money for such requests. Second, has the Student Council approved other funds for events by other groups that might be considered political advocacy? The complaint says that the council has funded activities by pro-choice groups, but it contains no specifics. This could be a very interesting case. Ed Brayton ___ 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.
RE: "Political divisions along religious lines"
Either religious or sacreligious. Either meant to be taken literally and seriously, or meant to invoke God's name in vain. But the Court will never be absolutist about this, and these slogans are in no danger. Quoting Christopher Lund <[EMAIL PROTECTED]>: > Responding to Professor Conkle's post, there certainly are > definitional problems. For me the hardest are the symbol cases * > does the Ten Commandments along with a number of secular displays > really convey a religious message? Doug Laycock's amicus brief in > Van Orden, I think, is the best attempt I've seen to draw that line. > (He says yes.) > > But some of your examples I think are pretty easy. When the > government message either says or must inherently assume that God > exists - that seems like an religious message. That goes for the > Pledge, "In God We Trust" on the coin, and "God Save the United > States." I'm not saying that all should be struck down. The costs > of striking them down might well outweigh the benefits to religious > liberty, especially with the possibility of constitutional > amendments. But that's a separate inquiry * I think they're pretty > clearly religious statements. > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > [EMAIL PROTECTED] 7/25/2008 3:35 PM >>> > > Chris Lund writes in part as follows: "if the Supreme Court lets > government speak religiously, there is a natural push for people to > want it to speak religiously as much as possible, and in the > particular way they want. Eventually, someone in the government > (whether the courts or otherwise) will have to decide what gets said > and who gets to say it." > > But this is inevitable, isn't it? There will be definitional or > categorization issues regardless of whether a prohibition on the > government "speaking religiously" is construed broadly or more > narrowly. E.g., under a broad prohibition on government religious > speech, what about "In God We Trust" or "God Save the United States"? > Religious speech and therefore invalid? Christmas displays that > include religious symbols along with other symbols? Christmas > displays without such symbols but nonetheless celebrating Christmas? > An invocation--whether or not so designated--that speaks in general > terms about faith and hope but not about God? Would it matter if the > speaker is a member of the clergy? > > Perhaps a broad prohibition would minimize the > definitional/categorization issues, but I'm not entirely sure about > that. > > Dan Conkle > *** > Daniel O. Conkle > Robert H. McKinney Professor of Law > Indiana University School of Law > Bloomington, Indiana 47405 > (812) 855-4331 > fax (812) 855-0555 > e-mail [EMAIL PROTECTED] > *** > > > > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Christopher > Lund > Sent: Friday, July 25, 2008 4:03 PM > To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu > Subject: RE: "Political divisions along religious lines" > > It's true that the battles over the secondary questions have been > limited (although some, like Hinrichs v. Bosma, have been the source > of some controversy). But part of it may be that nothing has reached > the Supreme Court yet, and so there's no nation-wide, high-profile > definitive rule that people read about in the papers. Say the > Supreme Court takes the case, and holds legislative prayer in Jesus' > name unconstitutional. This would cause a serious culture war > problem too, wouldn't it, maybe on the order of striking down > legislative prayer altogether? Committing it all to the political > branches is the other solution. It would keep the problems and > divisions local and out of the public limelight -- but they will > still exist. Minority listeners attending meetings will still feel > aggrieved; perhaps candidates in local elections would start to run > on prayer-related questions. > > I didn't mean to suggest that striking down legislative prayer was > the least controversial of the Court's options. But I do think that > if the Supreme Court lets government speak religiously, there is a > natural push for people to want it to speak religiously as much as > possible, and in the particular way they want. Eventually, someone > in the government (whether the courts or otherwise) will have to > decide what gets said and who gets to say it. > > And I can't help but think that if we didn't let government speak > religiously, people wouldn't expect it to. Maybe this is utter > foolishness, but I reread Simpson (the case of the Wiccan woman being > excluded from being able to offer a legislative prayer) last week. > Chesterfield County didn't have legislative prayer until 1984, when > in th
RE: "Political divisions along religious lines"
Responding to Professor Conkle's post, there certainly are definitional problems. For me the hardest are the symbol cases * does the Ten Commandments along with a number of secular displays really convey a religious message? Doug Laycock's amicus brief in Van Orden, I think, is the best attempt I've seen to draw that line. (He says yes.) But some of your examples I think are pretty easy. When the government message either says or must inherently assume that God exists - that seems like an religious message. That goes for the Pledge, "In God We Trust" on the coin, and "God Save the United States." I'm not saying that all should be struck down. The costs of striking them down might well outweigh the benefits to religious liberty, especially with the possibility of constitutional amendments. But that's a separate inquiry * I think they're pretty clearly religious statements. Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 7/25/2008 3:35 PM >>> Chris Lund writes in part as follows: "if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it." But this is inevitable, isn't it? There will be definitional or categorization issues regardless of whether a prohibition on the government "speaking religiously" is construed broadly or more narrowly. E.g., under a broad prohibition on government religious speech, what about "In God We Trust" or "God Save the United States"? Religious speech and therefore invalid? Christmas displays that include religious symbols along with other symbols? Christmas displays without such symbols but nonetheless celebrating Christmas? An invocation--whether or not so designated--that speaks in general terms about faith and hope but not about God? Would it matter if the speaker is a member of the clergy? Perhaps a broad prohibition would minimize the definitional/categorization issues, but I'm not entirely sure about that. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund Sent: Friday, July 25, 2008 4:03 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: RE: "Political divisions along religious lines" It's true that the battles over the secondary questions have been limited (although some, like Hinrichs v. Bosma, have been the source of some controversy). But part of it may be that nothing has reached the Supreme Court yet, and so there's no nation-wide, high-profile definitive rule that people read about in the papers. Say the Supreme Court takes the case, and holds legislative prayer in Jesus' name unconstitutional. This would cause a serious culture war problem too, wouldn't it, maybe on the order of striking down legislative prayer altogether? Committing it all to the political branches is the other solution. It would keep the problems and divisions local and out of the public limelight -- but they will still exist. Minority listeners attending meetings will still feel aggrieved; perhaps candidates in local elections would start to run on prayer-related questions. I didn't mean to suggest that striking down legislative prayer was the least controversial of the Court's options. But I do think that if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it. And I can't help but think that if we didn't let government speak religiously, people wouldn't expect it to. Maybe this is utter foolishness, but I reread Simpson (the case of the Wiccan woman being excluded from being able to offer a legislative prayer) last week. Chesterfield County didn't have legislative prayer until 1984, when in the wake of Marsh, it decided to do so. It was the judicial ratification of legislative prayer that prompted Chesterfield County to adopt it. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 1:16 PM >>> But the battles over secondary questions, as best I can tell, tend to be quite low-p
RE: "Political divisions along religious lines"
I think there is a lot of merit in what both Chris and Eugene are saying. It is hard to evaluate the political divisiveness issue without including some kind of temporal reference. Restrictions on the exercise of majority prerogatives in the name of minority rights will often produce a substantial reaction at first. But over time that may subside as people's attitudes change. Certainly the school prayer decisions of the 1960's were extremely controversial and divisive, but today they are accepted by many people of all faiths and political dispositions. It is hard to know what the long term reaction to constitutional decisions will be. There is also an issue of external as opposed to internal divisiveness. The civil rights movement and the legislation and constitutional decisions that resulted from it were incredibly divisive and produced a bitter and violent reaction. But I would be hard pressed to describe the Jim Crow regime of racial segregation and subordination as less divisive than the civil rights regime that followed it. (No, I am not equating prayers at city council meetings with racial subordination. The point is that if divisiveness is measured in quantitative terms, there is a sense in which what bothers the majority will always be more divisive than what bothers a minority -- and that while the resentment of the minority may be internalized (for obvious reasons), the fact of internalization says little about magnitude of people's feelings.) Alan Brownstein UC Davis School of Law It's true that the battles over the secondary questions have been limited (although some, like Hinrichs v. Bosma, have been the source of some controversy). But part of it may be that nothing has reached the Supreme Court yet, and so there's no nation-wide, high-profile definitive rule that people read about in the papers. Say the Supreme Court takes the case, and holds legislative prayer in Jesus' name unconstitutional. This would cause a serious culture war problem too, wouldn't it, maybe on the order of striking down legislative prayer altogether? Committing it all to the political branches is the other solution. It would keep the problems and divisions local and out of the public limelight -- but they will still exist. Minority listeners attending meetings will still feel aggrieved; perhaps candidates in local elections would start to run on prayer-related questions. I didn't mean to suggest that striking down legislative prayer was the least controversial of the Court's options. But I do think that if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it. And I can't help but think that if we didn't let government speak religiously, people wouldn't expect it to. Maybe this is utter foolishness, but I reread Simpson (the case of the Wiccan woman being excluded from being able to offer a legislative prayer) last week. Chesterfield County didn't have legislative prayer until 1984, when in the wake of Marsh, it decided to do so. It was the judicial ratification of legislative prayer that prompted Chesterfield County to adopt it. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 1:16 PM >>> But the battles over secondary questions, as best I can tell, tend to be quite low-profile. A few people care fairly deeply; most don't. What's more, the battles happen in relatively few places. A Supreme Court decision invalidating legislative prayer everywhere in the country, notwithstanding the tradition going back to the First Congress, would become notorious and would continue to be notorious -- like the school prayer decision, but probably more so, because the contradiction with the revealed views of the Framers would be even stronger. Like a decision striking down the Pledge of Allegiance, it would become an emblem of the culture wars, and something that I suspect would substantially exacerbate those culture wars. Eugene ___ 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.
Baker City restores prayer "in Jesus name"
Professor Lund wrote: "Perhaps candidates in local elections would start to run on prayer-related questions." (It's already happening!) Professor Volokh wrote: "A few people care fairly deeply; most don't. What's more, the battles happen in relatively few places." Actually, so many people care about this, it inspires standing-room church revivals in city council meetings, (as the article below proves). Actually, these conflicts are happening everywhere, (including the Military-victory for Jesus prayers, Indiana-victory, Ohio-victory, Pennsylvania-victory, North Carolina-pending, New York-pending, Florida-victory, Virginia-loss, Oklahoma-victory, and now Oregon-victory.) Actually, we're already running successful RECALL CAMPAIGNS TO REMOVE COUNCIL-MEMBERS who oppose prayer in Jesus' name (like Councilman Dielman in the article below, who was recalled "at least in part because of his position on prayer.") Note Baker City just voted 5-0 to remove the term "non-sectarian" from their prayer policy this week, after a the controversy caused a spontaneous church revival in their 22 July meeting. Another victory for prayer "in Jesus' name." Article below In Jesus name, Chaplain K. --- http://www.kgw.com/sharedcontent/APStories/stories/D923Q0E81.html E. Oregon council retains prayers before meetings 07/23/2008 Associated Press An attempt to remove the prayer that opens many Baker City Council meetings didn't have a prayer. Councilors were deluged Tuesday night by speakers opposed to the move and were against sending the matter to the voters. In the end, councilors voted unanimously to remove a reference about whether prayers should be sectarian from the nonbinding council invocation guidelines. Roger Scovil, pastor of the Baker City Christian Church, said that prayer is important in every aspect of human activity including government. He noted that the U.S. House of Representatives and Senate both open their sessions with prayers. A Muslim will pray in the name of Allah, a Buddhist according to the teachings of Buddha, Scovil said. Don Williams told the council that sectarian prayers show a broad tolerance of what this country is about. "You have been very tolerant of all prayers, and now you're being asked to be intolerant," he said. If council prayers are dropped, churches might stop entering floats in parades and offering Easter sunrise services in public parks, he said. Former council member Gary Dielman, who raised the issue when he criticized a prayer that opened the July 8 meeting and ended with "In Jesus' name, amen," was not present Tuesday. Council member Terry Schumacher said he hoped Dielman would take the hint "and quit coming back and doing this." Voters recalled Dielman in 2001, at least in part because of his position on prayer. Dielman first questioned religious references during official city activities when he was sworn in 1999. When reciting the oath of office, he did not say "so help me God." Councilwoman Beverly Calder said dissent is an American right that may represent other unspoken voices. Councilman Andrew Bryan was among the few who supported asking voters to decide the prayer issue and reciting of the Pledge of Allegiance at City Council meetings. "If we want an invocation and the pledge, we want to set it on the hardest rock we have," Bryan said. "If people really want the invocation and pledge, the best way to ensure that is to put it in the charter." "You can put it in the charter or paint it on a wall," countered Councilman Dennis Dorrah. "That still won't change Mr. Dielman or someone else coming in here and raising heck about it." At least the issue drew a crowd to the Tuesday night meeting, Calder noted. ___ 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.
RE: "Political divisions along religious lines"
Chris Lund writes in part as follows: "if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it." But this is inevitable, isn't it? There will be definitional or categorization issues regardless of whether a prohibition on the government "speaking religiously" is construed broadly or more narrowly. E.g., under a broad prohibition on government religious speech, what about "In God We Trust" or "God Save the United States"? Religious speech and therefore invalid? Christmas displays that include religious symbols along with other symbols? Christmas displays without such symbols but nonetheless celebrating Christmas? An invocation--whether or not so designated--that speaks in general terms about faith and hope but not about God? Would it matter if the speaker is a member of the clergy? Perhaps a broad prohibition would minimize the definitional/categorization issues, but I'm not entirely sure about that. Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund Sent: Friday, July 25, 2008 4:03 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: RE: "Political divisions along religious lines" It's true that the battles over the secondary questions have been limited (although some, like Hinrichs v. Bosma, have been the source of some controversy). But part of it may be that nothing has reached the Supreme Court yet, and so there's no nation-wide, high-profile definitive rule that people read about in the papers. Say the Supreme Court takes the case, and holds legislative prayer in Jesus' name unconstitutional. This would cause a serious culture war problem too, wouldn't it, maybe on the order of striking down legislative prayer altogether? Committing it all to the political branches is the other solution. It would keep the problems and divisions local and out of the public limelight -- but they will still exist. Minority listeners attending meetings will still feel aggrieved; perhaps candidates in local elections would start to run on prayer-related questions. I didn't mean to suggest that striking down legislative prayer was the least controversial of the Court's options. But I do think that if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it. And I can't help but think that if we didn't let government speak religiously, people wouldn't expect it to. Maybe this is utter foolishness, but I reread Simpson (the case of the Wiccan woman being excluded from being able to offer a legislative prayer) last week. Chesterfield County didn't have legislative prayer until 1984, when in the wake of Marsh, it decided to do so. It was the judicial ratification of legislative prayer that prompted Chesterfield County to adopt it. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 1:16 PM >>> But the battles over secondary questions, as best I can tell, tend to be quite low-profile. A few people care fairly deeply; most don't. What's more, the battles happen in relatively few places. A Supreme Court decision invalidating legislative prayer everywhere in the country, notwithstanding the tradition going back to the First Congress, would become notorious and would continue to be notorious -- like the school prayer decision, but probably more so, because the contradiction with the revealed views of the Framers would be even stronger. Like a decision striking down the Pledge of Allegiance, it would become an emblem of the culture wars, and something that I suspect would substantially exacerbate those culture wars. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Christopher > Lund > Sent: Friday, July 25, 2008 10:26 AM > To: Volokh, Eugene; religionlaw@lists.ucla.edu > Subject: Re: "Political divisions along religious lines" > > I agree with this, but your account only talks about the divisions > caused by the first decision. Striking down legislative prayer would > indeed be controversial, more so than
RE: "Political divisions along religious lines"
It's true that the battles over the secondary questions have been limited (although some, like Hinrichs v. Bosma, have been the source of some controversy). But part of it may be that nothing has reached the Supreme Court yet, and so there's no nation-wide, high-profile definitive rule that people read about in the papers. Say the Supreme Court takes the case, and holds legislative prayer in Jesus' name unconstitutional. This would cause a serious culture war problem too, wouldn't it, maybe on the order of striking down legislative prayer altogether? Committing it all to the political branches is the other solution. It would keep the problems and divisions local and out of the public limelight -- but they will still exist. Minority listeners attending meetings will still feel aggrieved; perhaps candidates in local elections would start to run on prayer-related questions. I didn't mean to suggest that striking down legislative prayer was the least controversial of the Court's options. But I do think that if the Supreme Court lets government speak religiously, there is a natural push for people to want it to speak religiously as much as possible, and in the particular way they want. Eventually, someone in the government (whether the courts or otherwise) will have to decide what gets said and who gets to say it. And I can't help but think that if we didn't let government speak religiously, people wouldn't expect it to. Maybe this is utter foolishness, but I reread Simpson (the case of the Wiccan woman being excluded from being able to offer a legislative prayer) last week. Chesterfield County didn't have legislative prayer until 1984, when in the wake of Marsh, it decided to do so. It was the judicial ratification of legislative prayer that prompted Chesterfield County to adopt it. Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 1:16 PM >>> But the battles over secondary questions, as best I can tell, tend to be quite low-profile. A few people care fairly deeply; most don't. What's more, the battles happen in relatively few places. A Supreme Court decision invalidating legislative prayer everywhere in the country, notwithstanding the tradition going back to the First Congress, would become notorious and would continue to be notorious -- like the school prayer decision, but probably more so, because the contradiction with the revealed views of the Framers would be even stronger. Like a decision striking down the Pledge of Allegiance, it would become an emblem of the culture wars, and something that I suspect would substantially exacerbate those culture wars. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Christopher Lund > Sent: Friday, July 25, 2008 10:26 AM > To: Volokh, Eugene; religionlaw@lists.ucla.edu > Subject: Re: "Political divisions along religious lines" > > I agree with this, but your account only talks about the > divisions caused by the first decision. Striking down > legislative prayer would indeed be controversial, more so > than approving it. I think that may be part of why Marsh > took the road it did. > > But, as we've seen, approving legislative prayer means having > real battles over secondary questions -- over who will get to > pray and what they will get to say. Those are nasty fights. > To me, they are the most perfect proof that the holding of > Marsh was dead wrong. For they demonstrate, don't they, that > whether or not legislative prayer is considered a religious > establishment by the Court, the people surely view it that > way. For whatever else, legislative prayer certainly bears > that central hallmark of religious establishments -- the > willingness to fight tooth and nail for control of it. > > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > >>> [EMAIL PROTECTED] 07/25/08 11:34 AM >>> > If the Establishment Clause was indeed supposed to > prevent "political divisions along religious lines," what do > we think would cause more such divisions -- legislative > prayer allowed under Marsh (which irks many law professors, > but likely a small minority of conservative Christians and a > small minority of atheists, agnostics, and members of > minority non-Christian religions) or the dissent's position > in Marsh? Acceptance of the Pledge of Allegiance with "under > God," or a Court decision striking down the Pledge? > > My sense is that on balance the Court's Establishment > Clause government speech jurisprudence has caused much more > political divisions along religious lines than it has > prevented -- but the Brennan/Marshall/Stevens view would ha
RE: "Political divisions along religious lines"
But the battles over secondary questions, as best I can tell, tend to be quite low-profile. A few people care fairly deeply; most don't. What's more, the battles happen in relatively few places. A Supreme Court decision invalidating legislative prayer everywhere in the country, notwithstanding the tradition going back to the First Congress, would become notorious and would continue to be notorious -- like the school prayer decision, but probably more so, because the contradiction with the revealed views of the Framers would be even stronger. Like a decision striking down the Pledge of Allegiance, it would become an emblem of the culture wars, and something that I suspect would substantially exacerbate those culture wars. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Christopher Lund > Sent: Friday, July 25, 2008 10:26 AM > To: Volokh, Eugene; religionlaw@lists.ucla.edu > Subject: Re: "Political divisions along religious lines" > > I agree with this, but your account only talks about the > divisions caused by the first decision. Striking down > legislative prayer would indeed be controversial, more so > than approving it. I think that may be part of why Marsh > took the road it did. > > But, as we've seen, approving legislative prayer means having > real battles over secondary questions -- over who will get to > pray and what they will get to say. Those are nasty fights. > To me, they are the most perfect proof that the holding of > Marsh was dead wrong. For they demonstrate, don't they, that > whether or not legislative prayer is considered a religious > establishment by the Court, the people surely view it that > way. For whatever else, legislative prayer certainly bears > that central hallmark of religious establishments -- the > willingness to fight tooth and nail for control of it. > > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > >>> [EMAIL PROTECTED] 07/25/08 11:34 AM >>> > If the Establishment Clause was indeed supposed to > prevent "political divisions along religious lines," what do > we think would cause more such divisions -- legislative > prayer allowed under Marsh (which irks many law professors, > but likely a small minority of conservative Christians and a > small minority of atheists, agnostics, and members of > minority non-Christian religions) or the dissent's position > in Marsh? Acceptance of the Pledge of Allegiance with "under > God," or a Court decision striking down the Pledge? > > My sense is that on balance the Court's Establishment > Clause government speech jurisprudence has caused much more > political divisions along religious lines than it has > prevented -- but the Brennan/Marshall/Stevens view would have > caused vastly more such divisions. Now perhaps that > shouldn't matter, because we should let justice be done > (assuming that justice somehow demands an end to religious > speech by the government, a theory that strikes me as > unproven) though the heavens fall. But if the goal of the > Establishment Clause is indeed to prevent political divisions > along religious lines, it seems to me that Scalia et al. > would accomplish that best (at least in their views of > government speech), O'Connor's and Breyer's views are a weak > second, and the Brennan/Marshall/Stevens is what would be an > "utter[] fail[ure]." > > Eugene > > > Chris Lund writes: > > > "That kind of jockeying for government recognition of particular > > denominations-- or for an implicit government statement rejecting > > supposed antireligious views-- seems to be just the kind of > political > > divisions along religious lines that the Establishment Clause was > > supposed to prevent." > > > > Yes indeed to Professor Friedman's statement, and (I would > > add) it's also the sort of divisions that Marsh itself was > trying to > > prevent. I tend to see Marsh as an earlier Van Orden -- government > > gets to act religiously, but not too much. Breyer says in > Van Orden > > that upholding the momument (not striking it down) is the > best way to > > avoid "religiously based divisiveness." I bet Marsh court had a > > thought or two along those lines -- that the best way to keep the > > peace was by approving legislative prayer with some (what > it thought > > to be modest) strings attached. > > > > Can we all agree that Marsh has utterly failed in this regard? > ___ > 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 lis
RE: Appeals Court Bans Prayer 'in Jesus' name'
I appreciate Professor Esenberg's clarification of his position, although I disagree with it in important respects. I tend to agree with Dan Conkle that coercion and government proselytizing are part of the story, but other concerns also have to be taken into account. Certainly, religious equality is one concern. If sectarian prayer is permitted, is government required to include prayers from different faiths or may it always choose to have a prayer offered from a particular religious tradition. The same issue applies to the display of religious symbols. May the government choose to only use the religious symbols of one faith at a war memorial or must it include symbols that represent the soldiers of other faiths that fought and died in the memorialized conflict? I agree with Professor Esenberg that serious restrictions on government's ability to speak religiously, viewed in isolation, can't be considered neutral in a world of expanded government. But I am not sure that this part of religion clause jurisprudence should be viewed in isolation. I have non-religious colleagues and friends who resent laws like RLUIPA because they are not neutral and provide preferential treatment to expressive religious institutions. If free exercise and statutory religion-based accommodations are factored into the equation, the overall picture may reflect more substantive neutrality than any one part examined in isolation. Alan Brownstein UC Davis School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Friday, July 25, 2008 8:26 AM To: Law & Religion issues for Law Academics; [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' My own personal reaction to invocations is often as Professor Friedman describes and my concern about the asymmetric treatment of government speech that makes religious dissenters feel like outsiders is more acutely presented in cases involving curricular speech, private speech that can be deemed to be government sponsored, faith based initiatives and the (admittedly rare) types of government proclamations of which the San Francisco Board of Examiners is so fond. But others see things differently and this is one of the reason that neither Marsh nor Van Orden buy us much civil peace. The idea that one can, in the words, iirc, Warren Nord, achieve neutrality through exclusion doesn't survive our modern idea of expanded government. This is one of the reasons that the Court's regime of strict separation broke down. Those who were being excluded did not see the naked public square as neutral. I largely agree with Professor Brownstein that it would be undesirable for "the majority [to 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." What I think it ought to be able to do, in service of a public and not entirely sectarian purpose, is to acknowledge and include the religious sentiments of its citizens as it serves that purpose without the type of restrictions often associated with the Lemon test or required by Justice O'Connor's endorsement test. In doing so, it ought not be permitted to coerce affirmation or participation in religious ceremonies or otherwise impose legal disabilities on nonadherents. My instinct is also that certain types of government messages can be so hostile to religious minorities that they impede their ability to function in civil society. An extreme example would be the Nazi party's vilification of Jews - something which supplemented coercive practices but which wasn't, strictly speaking, itself coercive. But I don't think it ought to be considered "coercive" to be exposed to a prayer at a graduation ceremony or to see a monument depicting the Ten Commandments in a public square. It is not coercive to see crosses in a memorial to the slain students at Columbine or to be exposed to the treatment of religious perspectives as they relate to subjects and activities with which the state is legitimately involved. While some of the latter is - or should be - permitted under current doctrine, I think that the ideas of coercion and substantial impairment of participation in civil society gets at what we ought to be concerned for rather than notions of mere endorsement (O'Connor) or advancing religion or having a predominant secular motivation (Souter in McCreary) - all with little regard to the extent of burden upon nonadherents. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201
RE: "Political divisions along religious lines"
I think there is also a difference between legislative prayer at the State or congressional level and prayer at the city council or school board level. The latter is more up close and personal and has far more coercive implications for citizens (as opposed to legislators). It may be that Marsh is not all that divisive at the state legislative level -- but causes much more of a problem at the local level. Alan Brownstein UC Davis School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund Sent: Friday, July 25, 2008 10:26 AM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: Re: "Political divisions along religious lines" I agree with this, but your account only talks about the divisions caused by the first decision. Striking down legislative prayer would indeed be controversial, more so than approving it. I think that may be part of why Marsh took the road it did. But, as we've seen, approving legislative prayer means having real battles over secondary questions -- over who will get to pray and what they will get to say. Those are nasty fights. To me, they are the most perfect proof that the holding of Marsh was dead wrong. For they demonstrate, don't they, that whether or not legislative prayer is considered a religious establishment by the Court, the people surely view it that way. For whatever else, legislative prayer certainly bears that central hallmark of religious establishments -- the willingness to fight tooth and nail for control of it. Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 11:34 AM >>> If the Establishment Clause was indeed supposed to prevent "political divisions along religious lines," what do we think would cause more such divisions -- legislative prayer allowed under Marsh (which irks many law professors, but likely a small minority of conservative Christians and a small minority of atheists, agnostics, and members of minority non-Christian religions) or the dissent's position in Marsh? Acceptance of the Pledge of Allegiance with "under God," or a Court decision striking down the Pledge? My sense is that on balance the Court's Establishment Clause government speech jurisprudence has caused much more political divisions along religious lines than it has prevented -- but the Brennan/Marshall/Stevens view would have caused vastly more such divisions. Now perhaps that shouldn't matter, because we should let justice be done (assuming that justice somehow demands an end to religious speech by the government, a theory that strikes me as unproven) though the heavens fall. But if the goal of the Establishment Clause is indeed to prevent political divisions along religious lines, it seems to me that Scalia et al. would accomplish that best (at least in their views of government speech), O'Connor's and Breyer's views are a weak second, and the Brennan/Marshall/Stevens is what would be an "utter[] fail[ure]." Eugene ___ 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.
Re: Appeals Court Bans Prayer 'in Jesus' name'
Maybe also because Marsh did not want to go into what the compromise actually was (i.e., the ambiguity in Marsh as to whether "sectarian" legislative prayer is constitutional). And maybe also because compromises are hard for people to accept when they don't really see any underlying principle behind them. Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 12:14 PM >>> I think the interesting question in regard to Marsh -- for the sake of the argument presuming it has failed -- is why it has failed: because sectarians are willing to use it as a means of coercing others into accepting their religious prayers and pronouncements, or because secularists are unwilling to accept any religious display as unobjectionable? Or maybe a bit of both? Richard Dougherty -Original Message- From: "Christopher Lund" <[EMAIL PROTECTED]> Sent 7/25/2008 9:16:51 AM To: religionlaw@lists.ucla.edu, [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'"That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent." Yes indeed to Professor Friedman's statement, and (I would add) it's also the sort of divisions that Marsh itself was trying to prevent. I tend to see Marsh as an earlier Van Orden -- government gets to act religiously, but not too much. Breyer says in Van Orden that upholding the momument (not striking it down) is the best way to avoid "religiously based divisiveness." I bet Marsh court had a thought or two along those lines -- that the best way to keep the peace was by approving legislative prayer with some (what it thought to be modest) strings attached. Can we all agree that Marsh has utterly failed in this regard? Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ 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.
Re: "Political divisions along religious lines"
I agree with this, but your account only talks about the divisions caused by the first decision. Striking down legislative prayer would indeed be controversial, more so than approving it. I think that may be part of why Marsh took the road it did. But, as we've seen, approving legislative prayer means having real battles over secondary questions -- over who will get to pray and what they will get to say. Those are nasty fights. To me, they are the most perfect proof that the holding of Marsh was dead wrong. For they demonstrate, don't they, that whether or not legislative prayer is considered a religious establishment by the Court, the people surely view it that way. For whatever else, legislative prayer certainly bears that central hallmark of religious establishments -- the willingness to fight tooth and nail for control of it. Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 11:34 AM >>> If the Establishment Clause was indeed supposed to prevent "political divisions along religious lines," what do we think would cause more such divisions -- legislative prayer allowed under Marsh (which irks many law professors, but likely a small minority of conservative Christians and a small minority of atheists, agnostics, and members of minority non-Christian religions) or the dissent's position in Marsh? Acceptance of the Pledge of Allegiance with "under God," or a Court decision striking down the Pledge? My sense is that on balance the Court's Establishment Clause government speech jurisprudence has caused much more political divisions along religious lines than it has prevented -- but the Brennan/Marshall/Stevens view would have caused vastly more such divisions. Now perhaps that shouldn't matter, because we should let justice be done (assuming that justice somehow demands an end to religious speech by the government, a theory that strikes me as unproven) though the heavens fall. But if the goal of the Establishment Clause is indeed to prevent political divisions along religious lines, it seems to me that Scalia et al. would accomplish that best (at least in their views of government speech), O'Connor's and Breyer's views are a weak second, and the Brennan/Marshall/Stevens is what would be an "utter[] fail[ure]." Eugene Chris Lund writes: > "That kind of jockeying for government recognition of particular > denominations-- or for an implicit government statement > rejecting supposed antireligious views-- seems to be just the > kind of political divisions along religious lines that the > Establishment Clause was supposed to prevent." > > Yes indeed to Professor Friedman's statement, and (I would > add) it's also the sort of divisions that Marsh itself was > trying to prevent. I tend to see Marsh as an earlier Van > Orden -- government gets to act religiously, but not too > much. Breyer says in Van Orden that upholding the momument > (not striking it down) is the best way to avoid "religiously > based divisiveness." I bet Marsh court had a thought or two > along those lines -- that the best way to keep the peace was > by approving legislative prayer with some (what it thought to > be modest) strings attached. > > Can we all agree that Marsh has utterly failed in this regard? ___ 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.
Re: Appeals Court Bans Prayer 'in Jesus' name'
I think the interesting question in regard to Marsh -- for the sake of the argument presuming it has failed -- is why it has failed: because sectarians are willing to use it as a means of coercing others into accepting their religious prayers and pronouncements, or because secularists are unwilling to accept any religious display as unobjectionable? Or maybe a bit of both? Richard Dougherty -Original Message- From: "Christopher Lund" <[EMAIL PROTECTED]> Sent 7/25/2008 9:16:51 AM To: religionlaw@lists.ucla.edu, [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'"That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent." Yes indeed to Professor Friedman's statement, and (I would add) it's also the sort of divisions that Marsh itself was trying to prevent. I tend to see Marsh as an earlier Van Orden -- government gets to act religiously, but not too much. Breyer says in Van Orden that upholding the momument (not striking it down) is the best way to avoid "religiously based divisiveness." I bet Marsh court had a thought or two along those lines -- that the best way to keep the peace was by approving legislative prayer with some (what it thought to be modest) strings attached. Can we all agree that Marsh has utterly failed in this regard? Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ 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.
"Political divisions along religious lines"
If the Establishment Clause was indeed supposed to prevent "political divisions along religious lines," what do we think would cause more such divisions -- legislative prayer allowed under Marsh (which irks many law professors, but likely a small minority of conservative Christians and a small minority of atheists, agnostics, and members of minority non-Christian religions) or the dissent's position in Marsh? Acceptance of the Pledge of Allegiance with "under God," or a Court decision striking down the Pledge? My sense is that on balance the Court's Establishment Clause government speech jurisprudence has caused much more political divisions along religious lines than it has prevented -- but the Brennan/Marshall/Stevens view would have caused vastly more such divisions. Now perhaps that shouldn't matter, because we should let justice be done (assuming that justice somehow demands an end to religious speech by the government, a theory that strikes me as unproven) though the heavens fall. But if the goal of the Establishment Clause is indeed to prevent political divisions along religious lines, it seems to me that Scalia et al. would accomplish that best (at least in their views of government speech), O'Connor's and Breyer's views are a weak second, and the Brennan/Marshall/Stevens is what would be an "utter[] fail[ure]." Eugene Chris Lund writes: > "That kind of jockeying for government recognition of particular > denominations-- or for an implicit government statement > rejecting supposed antireligious views-- seems to be just the > kind of political divisions along religious lines that the > Establishment Clause was supposed to prevent." > > Yes indeed to Professor Friedman's statement, and (I would > add) it's also the sort of divisions that Marsh itself was > trying to prevent. I tend to see Marsh as an earlier Van > Orden -- government gets to act religiously, but not too > much. Breyer says in Van Orden that upholding the momument > (not striking it down) is the best way to avoid "religiously > based divisiveness." I bet Marsh court had a thought or two > along those lines -- that the best way to keep the peace was > by approving legislative prayer with some (what it thought to > be modest) strings attached. > > Can we all agree that Marsh has utterly failed in this regard? ___ 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.
RE: Appeals Court Bans Prayer 'in Jesus' name'
As Professor Esenberg suggests, coercion is a highly relevant consideration in addressing religious expression in governmental settings, but there are other important considerations as well--whether the expression is sectarian or nonsectarian, whether it is worshipful or nonworshipful, whether the governmental practice is traditional, and whether the expression is governmental, private, or mixed. Or so I have argued in suggesting that a multivariable approach would better reflect the full range of constitutional values in this context. Of course, such an approach would be messy, reflecting as it would an approach having some affinity to Justice Breyer's much-criticized opinion in Van Orden. For anyone would might be interested, my essay is "The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard," 110 W. Va. L. Rev. 315 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995777 Dan Conkle *** Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] *** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Friday, July 25, 2008 11:26 AM To: Law & Religion issues for Law Academics; [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' My own personal reaction to invocations is often as Professor Friedman describes and my concern about the asymmetric treatment of government speech that makes religious dissenters feel like outsiders is more acutely presented in cases involving curricular speech, private speech that can be deemed to be government sponsored, faith based initiatives and the (admittedly rare) types of government proclamations of which the San Francisco Board of Examiners is so fond. But others see things differently and this is one of the reason that neither Marsh nor Van Orden buy us much civil peace. The idea that one can, in the words, iirc, Warren Nord, achieve neutrality through exclusion doesn't survive our modern idea of expanded government. This is one of the reasons that the Court's regime of strict separation broke down. Those who were being excluded did not see the naked public square as neutral. I largely agree with Professor Brownstein that it would be undesirable for "the majority [to 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." What I think it ought to be able to do, in service of a public and not entirely sectarian purpose, is to acknowledge and include the religious sentiments of its citizens as it serves that purpose without the type of restrictions often associated with the Lemon test or required by Justice O'Connor's endorsement test. In doing so, it ought not be permitted to coerce affirmation or participation in religious ceremonies or otherwise impose legal disabilities on nonadherents. My instinct is also that certain types of government messages can be so hostile to religious minorities that they impede their ability to function in civil society. An extreme example would be the Nazi party's vilification of Jews - something which supplemented coercive practices but which wasn't, strictly speaking, itself coercive. But I don't think it ought to be considered "coercive" to be exposed to a prayer at a graduation ceremony or to see a monument depicting the Ten Commandments in a public square. It is not coercive to see crosses in a memorial to the slain students at Columbine or to be exposed to the treatment of religious perspectives as they relate to subjects and activities with which the state is legitimately involved. While some of the latter is - or should be - permitted under current doctrine, I think that the ideas of coercion and substantial impairment of participation in civil society gets at what we ought to be concerned for rather than notions of mere endorsement (O'Connor) or advancing religion or having a predominant secular motivation (Souter in McCreary) - all with little regard to the extent of burden upon nonadherents. 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 Christopher Lund [EMAIL PROTECTED] S
RE: Appeals Court Bans Prayer 'in Jesus' name'
My own personal reaction to invocations is often as Professor Friedman describes and my concern about the asymmetric treatment of government speech that makes religious dissenters feel like outsiders is more acutely presented in cases involving curricular speech, private speech that can be deemed to be government sponsored, faith based initiatives and the (admittedly rare) types of government proclamations of which the San Francisco Board of Examiners is so fond. But others see things differently and this is one of the reason that neither Marsh nor Van Orden buy us much civil peace. The idea that one can, in the words, iirc, Warren Nord, achieve neutrality through exclusion doesn't survive our modern idea of expanded government. This is one of the reasons that the Court's regime of strict separation broke down. Those who were being excluded did not see the naked public square as neutral. I largely agree with Professor Brownstein that it would be undesirable for "the majority [to 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." What I think it ought to be able to do, in service of a public and not entirely sectarian purpose, is to acknowledge and include the religious sentiments of its citizens as it serves that purpose without the type of restrictions often associated with the Lemon test or required by Justice O'Connor's endorsement test. In doing so, it ought not be permitted to coerce affirmation or participation in religious ceremonies or otherwise impose legal disabilities on nonadherents. My instinct is also that certain types of government messages can be so hostile to religious minorities that they impede their ability to function in civil society. An extreme example would be the Nazi party's vilification of Jews - something which supplemented coercive practices but which wasn't, strictly speaking, itself coercive. But I don't think it ought to be considered "coercive" to be exposed to a prayer at a graduation ceremony or to see a monument depicting the Ten Commandments in a public square. It is not coercive to see crosses in a memorial to the slain students at Columbine or to be exposed to the treatment of religious perspectives as they relate to subjects and activities with which the state is legitimately involved. While some of the latter is - or should be - permitted under current doctrine, I think that the ideas of coercion and substantial impairment of participation in civil society gets at what we ought to be concerned for rather than notions of mere endorsement (O'Connor) or advancing religion or having a predominant secular motivation (Souter in McCreary) - all with little regard to the extent of burden upon nonadherents. 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 Christopher Lund [EMAIL PROTECTED] Sent: Friday, July 25, 2008 9:16 AM To: religionlaw@lists.ucla.edu; [EMAIL PROTECTED] Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' "That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent." Yes indeed to Professor Friedman's statement, and (I would add) it's also the sort of divisions that Marsh itself was trying to prevent. I tend to see Marsh as an earlier Van Orden -- government gets to act religiously, but not too much. Breyer says in Van Orden that upholding the momument (not striking it down) is the best way to avoid "religiously based divisiveness." I bet Marsh court had a thought or two along those lines -- that the best way to keep the peace was by approving legislative prayer with some (what it thought to be modest) strings attached. Can we all agree that Marsh has utterly failed in this regard? Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 8:14 AM >>> I think we need to ask why so much passion is expended on the question of invocations to begin meetings of government bodies. I find it hard to believe that proponents feel legislators will make significantly different decisions if the form
RE: Appeals Court Bans Prayer 'in Jesus' name'
"That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent." Yes indeed to Professor Friedman's statement, and (I would add) it's also the sort of divisions that Marsh itself was trying to prevent. I tend to see Marsh as an earlier Van Orden -- government gets to act religiously, but not too much. Breyer says in Van Orden that upholding the momument (not striking it down) is the best way to avoid "religiously based divisiveness." I bet Marsh court had a thought or two along those lines -- that the best way to keep the peace was by approving legislative prayer with some (what it thought to be modest) strings attached. Can we all agree that Marsh has utterly failed in this regard? Best, Chris Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) >>> [EMAIL PROTECTED] 07/25/08 8:14 AM >>> I think we need to ask why so much passion is expended on the question of invocations to begin meetings of government bodies. I find it hard to believe that proponents feel legislators will make significantly different decisions if the form of prayer at the beginning of their meeting is slightly different. Isn't this really about garnering government recognition of the validity, or at least respectability, of a particular religious belief? Isn't that why it is newsworthy when for the first time a Hindu or Sikh or Buddhist offers an invocation at city council or in a state legislature? I suspect that if a quiz were given to those in attendance, almost no one could repeat any of the content of an invocation a half hour after it was offered. But they could tell you who delivered it, or what religious denomination the person represented. That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent. Howard Friedman From: [EMAIL PROTECTED] on behalf of Jean Dudley Sent: Thu 7/24/2008 8:16 PM To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' On Jul 24, 2008, at Thu, Jul 24, 2:51 PM, Gordon James Klingenschmitt wrote: > Professors Lund and Essenberg seek the larger question, which I > believe seems to involve whether a government can pray, at all. We > all agree individuals can pray, and the First Amendment protects > individual speech by private citizens. But can governments pray? Ostensibly, one particular form of government can pray; a theocracy. I suppose a monarchy such as the United Kingdom can pray as well, if the monarch is also the head of the state church. However, we are a representative democracy, and if *our* government prays, the prayer will of necessity be sectarian, and therefore exclusionary of other sects, and by default will be endorsing one religion over another and thus we have ipso facto a state religion. All well and fine it it's *your* religion, but not so fine if its not *your* religion. Perhaps, Mr. Klingenschmitt, your question should be "should governments pray?". To which I would answer a resounding, emphatic, "Not just no, but HELL NO!" Jean Dudley ___ 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.
RE: Appeals Court Bans Prayer 'in Jesus' name'
I think we need to ask why so much passion is expended on the question of invocations to begin meetings of government bodies. I find it hard to believe that proponents feel legislators will make significantly different decisions if the form of prayer at the beginning of their meeting is slightly different. Isn't this really about garnering government recognition of the validity, or at least respectability, of a particular religious belief? Isn't that why it is newsworthy when for the first time a Hindu or Sikh or Buddhist offers an invocation at city council or in a state legislature? I suspect that if a quiz were given to those in attendance, almost no one could repeat any of the content of an invocation a half hour after it was offered. But they could tell you who delivered it, or what religious denomination the person represented. That kind of jockeying for government recognition of particular denominations-- or for an implicit government statement rejecting supposed antireligious views-- seems to be just the kind of political divisions along religious lines that the Establishment Clause was supposed to prevent. Howard Friedman From: [EMAIL PROTECTED] on behalf of Jean Dudley Sent: Thu 7/24/2008 8:16 PM To: [EMAIL PROTECTED]; Law & Religion issues for Law Academics Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' On Jul 24, 2008, at Thu, Jul 24, 2:51 PM, Gordon James Klingenschmitt wrote: > Professors Lund and Essenberg seek the larger question, which I > believe seems to involve whether a government can pray, at all. We > all agree individuals can pray, and the First Amendment protects > individual speech by private citizens. But can governments pray? Ostensibly, one particular form of government can pray; a theocracy. I suppose a monarchy such as the United Kingdom can pray as well, if the monarch is also the head of the state church. However, we are a representative democracy, and if *our* government prays, the prayer will of necessity be sectarian, and therefore exclusionary of other sects, and by default will be endorsing one religion over another and thus we have ipso facto a state religion. All well and fine it it's *your* religion, but not so fine if its not *your* religion. Perhaps, Mr. Klingenschmitt, your question should be "should governments pray?". To which I would answer a resounding, emphatic, "Not just no, but HELL NO!" Jean Dudley ___ 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.
