Having jumped into this discussion a bit late, let me elaborate on points that I believe Joel Sogol has elegantly made. At times of personal tragedy, many strict separationists believe that civility requires that we sometimes sit on constitutional objections (which others may think are mistaken). We sometimes sit even though we believe while some of what we are hearing are sincere expressions of religious faith, we also sometimes hear what we believe (rightly or wrongly) are elected officials pandering to popular religious sentiments (church attendence does seem to pick up when people run for office). But this form of civility should run in both directions. To use a slightly different example, based loosely on real events, I think it would be grossly uncivil of me to object to the infusion of a certain dose of Christianity into memorial services run by public schools when a student has died, even though I happen to think (rightly or wrongly) that this violates the establishment clause. But surely it would be also uncivil for someone to say publicly at the service, "Graber, surely you do not believe this invocation of Jesus or prayer violates the establishment clause." There is actually an interesting history in the 18th and 19th century of waiver of constitutional rights that I think covers these circumstances (interestingly, several representatives in the first or second congress urged waiver to justify what they thought was an unconstitutional but morally decent bill authorizing refugee aid). I wonder whether in this time of disaster, several list members whose contributions are consistently valuable may wonder whether a) they inadvertently picked a fight with people who had civility reasons for not fighting at this time or b)overreacted to an effort to raise legitimate questions that was probably unncessarily provocative.
Mark A. Graber >>> [EMAIL PROTECTED] 09/01/05 12:21 PM >>> The wall is the central metaphor defining the meaning and work of the Establishment Clause for many commentators including on this list. When the government "gets away" with some emblematic behavior tinged with religious connotations, the hue and cry of breach is predictable. We are all watching with horror as the situation on the gulf coast goes from terrible to unimaginable. And in the midst of it, suddenly, the breach of the levee walls made the unimaginable simply a stop on the road to the unthinkable. But this list is for thinking. As I have heard the cable news bulldogs talking about lack of sufficient preparation on the part of the federal government, I wondered, "Is that really the case? Have all federal government officials really fallen down on the job?" It took me a few minutes of thought to recall that at least one federal official, a judge, had looked ahead to this day. Like the proverbial ant laboring through the summer's sunshine, he prepared for this eventually. And, unlike so many "talkers," he actually did something. You may be wondering about the identity of the judge in question. I am wondering how you could forget a judge who would have the prescience, the forethought, to see the inevitability of a future disaster of, well, biblical proportions, and take action. I am, of course, referring to Judge Ira DeMent. After he concluded that the Alabama Prayer Statute was unconstitutional, he issued a permanent injunction that was, if I correctly recall, much debated and with heat on this list. One key feature of his order, the one which demonstrates today his prescience then was his judicial ban on expression of religious or devotional sentiments over school public address systems even in times of war, natural disaster, or serious community distress. This week, as Katrina has worn away at the levee walls in New Orleans, we have the news that another assault on the wall of separation took place yesterday, when Louisiana's Governor declared a Day of Prayer. Governor Blanco urged Louisianans to pray to God and even told them how to pray and what things for which to pray. _You can read her declaration here._ (http://www.gov.state.la.us/Press_Release_detail.asp?id=988) Or point your browser to _http://www.gov.state.la.us/Press_Release_detail.asp?id=988_ (http://www.gov.state.la.us/Press_Release_detail.asp?id=988) . I wonder whether anyone will be found to stand in this breach? Will any forward thinking, DeMent-minded person or group will step forward to close it again, to push back the might rushing waters of government-encouraged, government-endorsed religious invocations of divine aid? Will People For, or Americans United, or the ACLU, ride in to the rescue? Jim Henderson Senior Counsel ACLJ _______________________________________________ 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.