Chaplain K, below: "But can governments pray?" What is government, if it is not people? More specifically, when meeting, isn't the city council government? If it has an agenda, isn't that a government agenda? So people speaking pursuant to the meeting agenda, isn't that government acting? Common sense question -- must the agenda be in writing?
An easy non-government example would be when a member of the audience stands and delivers a prayer in Jesus name, unplanned by council members. And some legal issues are indeed close questions - that's the reason we have courts. Daniel G. Gibbens Regents' Professor of Law Emeritus University of Oklahoma ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gordon James Klingenschmitt Sent: Thursday, July 24, 2008 4:51 PM To: Law & Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' 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? Justice O'Connor interpreted Simpson as precedent to mean that all speakers in a government forum (even private pastors, but especially councilmembers) are government agents doing government business while saying the prayer, not private citizens offering a private petition that happens to be overheard by the government. Hence she believes the government is saying the prayer, not the person. This cannot be true, because governments cannot say prayers unless they choose a government-favored god. When the government defines its own god, it has established a preferred religion. The non-sectarian god is favored over other gods (Christian, Hindu, etc.), and the government publicly declares to all citizens "our god is favored, and yours should all be excluded. You can only participate in this government-religious exercise if you bow your knee and pray to the government's non-sectarian god." The solution is for a court to state the obvious fact, that whenever a citizen or public official or any person says a prayer, that during the moment of religious worship, he or she CANNOT POSSIBLY be speaking as a government actor, only as a private citizen speaking his own opinion in a government forum. Perhaps the Supreme Court would take this, since it conflicts with Hinrichs v. Bosma appeals court who recently permitted Jesus prayers in the Indiana legislature. The good news is, while affirming her 1) bogus non-sectarian policy, Justice O'Connor also cleared the way for policies that allow 2) paid-chaplains to pray according to their own faith (i.e. U.S. Congress policy), and 3) taking turns among diverse beliefs of citizens (i.e. Tulsa Oklahoma policy, here: http://www.persuade.tv/Frenzy12/TulsaPrayerPolicy.pdf ) So If Fredericksburg city council (or any other council) wished to adopt policies 2 and 3 instead of 1, they would also be affirmed. That's the silver lining in O'Connor's cloud. Again, my commentary on her entire decision, line-by-line, is here: http://persuade.tv/Frenzy13/ONN13Jul08Annapolis.pdf In Jesus, Chaplain K. "Esenberg, Richard" <[EMAIL PROTECTED]> wrote: Agreed, I'm interested in the larger question. ________________________________ From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Christopher Lund [EMAIL PROTECTED] Sent: Thursday, July 24, 2008 3:19 PM To: religionlaw@lists.ucla.edu Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' I agree with some of the points Professor Esenberg makes, but just to be clear, the result in this case wouldn't change if governmental prayers in Jesus' name were considered constitutionally permissible. Fredricksburg would still be allowed (under the government-speech doctrine) to keep their own prayers nonsectarian. Turner was seeking to impose (not lift) constitutional restrictions on Fredricksburg. 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] 7/24/2008 2:54:26 PM >>> I agree with Professor Gibson that faithful Christians can pray without invoking the name of Jesus and with Professor Lund that this seems like the correct result under existing law (even Justice Scalia might agee) and I appreciate Professor Laycock's invocation of the great Alexander Bickel. Wrong answers is what the wrong questions beget, One of my favorite phrases. But I wonder if the right question is whether government, as we know it in the 21st century, ever can avoid speaking religiously. While the monument questions don't put the question in the starkest form, the more things on which government chooses to speak, the more likely it is to either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. Government can, of course, avoid speaking in expressly sectarian terms, but the idea that this avoids (or even softens) the religious insult seems empirically wrong and rooted in a view of what religion is and where it ought to be allowed that is itself not religiously neutral. Maybe that resolution - itself a very liberal protestant denouement - is the best we can do, although the idea that this has resulted in less division and more liberty is not self evidently true. But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' name really ought to constitute an establishment of religion. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] ________________________________ From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Wednesday, July 23, 2008 7:15 PM To: religionlaw@lists.ucla.edu Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' Well actually, the court of appeals did not ban prayer in Jesus' name. Nor did the City of Fredericksburg ban prayer in Jesus' name. Prayer in Jesus' name is continuing all over the city. The City said it would not sponsor prayer in Jesus' name; if anything was "banned," it was only at official city functions where the City controlled the agenda and thus controlled whether there would be a prayer at all. I agree that this is a very awkward decision. But it is the inevitable result once we start down the path of allowing government-sponsored prayers. Wrong answers is what the wrong questions beget, and when the answer is that the best solution is to restrict the religious content of prayers, the system has asked the wrong question. The only way to fix this is to reconsider Marsh v. Chambers. Quoting Gordon James Klingenschmitt : > Press release below. Please forward widely. Please call for interviews! > In Jesus, > Chaplain K. > ------------------------ > > Appeals Court Bans Prayer 'In Jesus' Name' > > Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org, > 719-360-5132 cell, [EMAIL PROTECTED] > > WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court > of Appeals today ruled that the city council of Fredericksburg, > Virginia had proper authority to require "non-sectarian" prayer > content and exclude council-member Rev. Hashmel Turner from the > prayer rotation because he prayed "in Jesus' name." > > Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said: > "The restriction that prayers be nonsectarian in nature is designed > to make the prayers accessible to people who come from a variety of > backgrounds, not to exclude or disparage a particular faith." > > Ironically, she admitted Turner was excluded from participating > solely because of the Christian content of his prayer. > > A full text copy of the decision, with added commentary by Chaplain > Klingenschmitt is here: > www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf > > Gordon James Klingenschmitt, the former Navy chaplain who faced > court-martial for praying "in Jesus name" in uniform (but won the > victory in Congress for other chaplains), defended Rev. Hashmel > Turner: > > "The Fredericksburg government violated everybody's rights by > establishing a non-sectarian religion, and requiring all prayers > conform, or face punishment of exclusion. Justice O'Connor showed her > liberal colors today, by declaring the word 'Jesus' as illegal > religious speech, which can be banned by any council who wishes to > ignore the First Amendment as she did. Councilman Rev. Hashmel Turner > should run for mayor, fire the other council-members, and re-write > the prayer policy. And if he appeals to the Supreme Court, I pray he > will win, in Jesus' name." > > For media interviews, call: > Chaplain Klingenschmitt 719-360-5132 cell > Email: [EMAIL PROTECTED] > Web address: www.PrayInJesusName.org > > > > Source: > http://christiannewswire.com/news/558917273.html > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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