RE: Victory for prayer in Jesus name?
I agree with Christopher that the complaint about lack of injury in EC cases goes more to substance than to standing. I am writing an article on Justice Thomas and "partial incorporation" of the EC (EC incorporated not as a structural limitation on the power of state govt, but only to the extent that it protects individual liberty interests against substantial burdens or deprivations) and here is an excerpt from a working draft of my article that relates to some of what we have been discussing lately (footnotes omitted): Although Justice OConnor has tried to explain the endorsement test as a rule designed to protect an individuals right not to feel like an outsider or a disfavored member of the political community, this view amounts to nothing more than an unconvincing attempt to portray a structural limitation on state government speech as a spurious right to censor public displays that one finds offensive. Why should we think that liberty under the Establishment Clause includes the right to control which holidays state governments may celebrate and which ideas state governments may express? This is an extraordinary "liberty," unlike any other liberty incorporated by the Fourteenth Amendment. For example, no one would argue that the Free Exercise Clause protects a persons right to censor public displays that offend his sincerely held religious beliefs. Thus, A does not have a First Amendment right to enjoin a "gay pride" display in a public park because it offends his religious beliefs and sends a message to him that he is an outsider and a disfavored member of the political community. As remedy is to avoid the offensive display or to avert his eye when walking past it. Similarly, B should not have a First Amendment right to enjoin a Christmas display that she finds offensive. The incorporated Establishment Clause protects individual liberty from substantial burdens imposed by state action, but there is no liberty to not be offended by government speech in the public square. Indeed, a rule cleansing religious displays from the public square actually promotes the evil it seeks to avoid, because by singling out religious displays for exclusion from the public culture the Court is sending a message that people of faith are outsiders, disfavored members of the political community whose holidays and ideas may not be recognized and celebrated in a public square that includes everyone else. As Steven Smith argues, if religious symbols and holidays are cleansed from the public square, many religious citizens may "feel that their most central values and concernsand thus, in an important sense, they themselveshave been excluded from a public culture devoted purely to secular concerns." In order to succeed in an Establishment Clause case brought against state or local government, the claimant should be required to demonstrate that the challenged law or policy substantially burdens an individual liberty protected under the Clause. The kind of "psychic harm" one experiences when government endorses a controversial idea or symbol in the public schools or upon the public square does not impose a substantial burden on an incorporated Establishment Clause liberty, unless a dissenter is compelled to affirm his belief in the offensive idea. If A has no right to forbid the teaching of evolution in the public schools because that lesson is offensive to his religious beliefs protected under the Free Exercise Clause, then B has no right to forbid the teaching of intelligent design in the public schools because that lesson is offensive to his liberty protected under the Establishment Clause. Since the structural component of the Establishment Clause limiting the power of the states to endorse or advance religion is not subject to incorporation, the merits and wisdom of education in the public schools are for school boards and state legislatorsnot federal judgesto determine, so long as individual liberty under the First Amendment is not substantially burdened. That is only a small excerpt of my piece on Thomas and partial incorporation, but suffice it to say that I believe his views about incorporating the EC only to the extent that it protects individual liberty against substantial deprivations are very powerful and convincing. 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. - Park yourself in front of a world of choices in alternative vehicles. Visit the Yahoo! Auto Green Center.
RE: Victory for prayer in Jesus name?
Let me draw attention to Judge DeMoss's concurrence. Judge DeMoss boldly took on the Supreme Court's standing jurisprudence directly, saying that the Court "cannot continue to hold expressly that the injury in fact requirement is no different for Establishment Clause cases, while it implicitly assumes standing in cases where the alleged injury, in a non-Establishment Clause case, would not get the plaintiff into the courthouse. This double standard must be corrected because . . . it opens the courts' doors to a group of plaintiffs who have no complaint other than they dislike any government reference to God." Judge DeMoss continued: "On the basis of the stipulations before us in this case, I would find these facts helpful in evaluating injury in fact: this prayer practice has existed for thirty years, the school board does not specify or approve the contents of any prayer or invocation in advance, and in giving the prayer or invocation, the speaker does not purport to speak for, or on behalf of, the school board. In my view, the fact that the Does 'take offense' to this prayer practice should not constitute an injury in fact for standing purposes." With respect to Judge DeMoss, I have trouble with this standing analysis. All of the facts in the above paragraph certainly go to whether there is a constitutional violation. But they should be irrelevant to standing. None of these facts he cites are about these plaintiffs or their potential standing. Judge DeMoss is really saying that there isn't (or shouldn't be) a constitutional violation here, and thus no one has suffered an "injury in fact," and thus no one has standing to sue. This comes up often in passive display cases. The defendant argues that a passive display is constitutional, and then also throws the argument into the standing section of the brief as well -- arguing that merely seeing a display simply isn't, as a categorical matter, enough to create an "injury in fact." But this is just a disagreement with the Court's current interpretation of the Establishment Clause; it really isn't about standing at all. Chris From: [EMAIL PROTECTED]: Mon, 30 Jul 2007 17:46:03 -0400Subject: Re: Victory for prayer in Jesus name?To: [EMAIL PROTECTED] Klingenschmitt was well advised to put a question mark in his subject line. Last week's CA5 decision does not uphold the constitutionality of the school board's practice. Rather, the case (DOE v. TANGIPAHOA PARISH SCHOOL BOARD, No. 05-30294 (July 25)) was dismissed because the plaintiffs had neglected to put in the record any evidence that they had attended a school board meeting and had been exposed to the challenged prayers; therefore they had not demonstrated that they had standing to sue. Any person who has attended a school board meeting and has been exposed to the challenged prayers remains free to file a new lawsuit, where the constitutionality of the practice will be an open question. Indeed, the court stated "it is not hard to conceive that a more concrete controversy may arise in the future." Whether this decision is "worthy of celebration and wide-spread publicity" I leave to the good chaplain's judgment.Art SpitzerACLU of the National Capital AreaWashington DCIn a message dated 7/30/07 5:22:49 PM, [EMAIL PROTECTED] writes: ACLU just lost their case against prayer in Jesus name by Louisiana school board. http://www.christianpost.com/article/20070727/28638_Judges_Overturn_Ban_on_School_Board_Prayer.htm This victory by ADF is worthy of celebration and wide-spread publicity.**Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour _ Don't get caught with egg on your face. Play Chicktionary! http://club.live.com/chicktionary.aspx?icid=chick_wlmailtextlink___ 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: Victory for prayer in Jesus name?
Chaplain Klingenschmitt was well advised to put a question mark in his subject line. Last week's CA5 decision does not uphold the constitutionality of the school board's practice. Rather, the case (DOE v. TANGIPAHOA PARISH SCHOOL BOARD, No. 05-30294 (July 25)) was dismissed because the plaintiffs had neglected to put in the record any evidence that they had attended a school board meeting and had been exposed to the challenged prayers; therefore they had not demonstrated that they had standing to sue. Any person who has attended a school board meeting and has been exposed to the challenged prayers remains free to file a new lawsuit, where the constitutionality of the practice will be an open question. Indeed, the court stated "it is not hard to conceive that a more concrete controversy may arise in the future." Whether this decision is "worthy of celebration and wide-spread publicity" I leave to the good chaplain 's judgment. Art Spitzer ACLU of the National Capital Area Washington DC In a message dated 7/30/07 5:22:49 PM, [EMAIL PROTECTED] writes: > ACLU just lost their case against prayer in Jesus name by Louisiana school > board. > > > http://www.christianpost.com/article/20070727/28638_Judges_Overturn_Ban_on_School_Board_Prayer.htm > > This victory by ADF is worthy of celebration and wide-spread publicity. > > ** Get a sneak peek of the all-new AOL at http://discover.aol.com/memed/aolcom30tour ___ 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.
Victory for prayer in Jesus name?
ACLU just lost their case against prayer in Jesus name by Louisiana school board. http://www.christianpost.com/article/20070727/28638_Judges_Overturn_Ban_on_School_Board_Prayer.htm This victory by ADF is worthy of celebration and wide-spread publicity. In Jesus name, Chaplain Gordon James Klingenschmitt 719-360-5132 cell --- Judges Overturn Ban on School Board Prayer By Doug Huntington Christian Post Reporter Fri, Jul. 27 2007 12:41 PM ET A Louisiana school district that has been riddled with religious lawsuits got some backing Wednesday after a panel of judges overturned a decision that had formerly barred them from opening their meetings with prayer. The U.S. Court of Appeals for the 5th Circuit ruled that the Tangipahoa Parish School Board which has had five religious-related lawsuits brought against it in the past 13 years could not be held accountable for an offended observer and has the right to have voluntary prayer at their meetings. According to attorneys from the faith-based legal group Alliance Defense Fund (ADF), the decision severely undercuts the American Civil Liberties Union (ACLU), which has been filing the suits, in their use of the Establishment Clause. The court today has delivered a serious blow to the ACLU by affirming that the far left can no longer bully its way into court without any proven, concrete injury, explained ADF senior legal counsel Mike Johnson in a statement. Johnson presented the oral argument on behalf of the school board defendants on May 22. Simply claiming that one is offended by religious speech or symbols is not enough to spark a federal case, he added. For several decades, the Louisiana school board has opened all their meetings with prayer. But in October 2003, the ACLU sued the board on behalf of an anonymous plaintiff, claiming that the practice offended him. After it went to trial, a decision was made in February 2005 by federal district court judge Ginger Berrigan, who also happened to be a former state president of the ACLU. In the ruling, she called for the board to permanently cease the prayers, because she argued that it was violating the plaintiffs rights under the Establishment Clause of the First Amendment. Following the situation, attorneys from ADF and their co-counsel from the law firm Adams and Reese filed an appeal, and the court granted their request. After looking over the case, the 5th Circuit judges decided to overturn the district courts opinion, with a majority statement explaining that it spares this court from issuing a largely hypothetically-based ruling on issues of broad importance to deliberative public bodies in this circuit and beyond. The board members will now be able to resume their prayers at meetings. The practice of opening public meetings with prayer is and always has been lawful and appropriate, added Johnson. The Constitution does not ban citizens or elected officials from invoking divine guidance and blessings upon our public work. Other lawsuits that ACLU attorneys have brought up against the Tangipahoa Parish School Board include allowing the evangelical group Gideons International to hand out Bibles during school hours and allowing a pizza preacher who distributes pizza and teaches Christianity during lunch. - Yahoo! oneSearch: Finally, mobile search that gives answers, not web links. ___ 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.
