RE: Appeals Court Bans Prayer 'in Jesus' name'
Many good Christians - both conservatives and liberals -- believe prayer is equally effective when in Jesus name is omitted, and actually pray accordingly. If nothing else, the Establishment Clause does restrict people when they are acting as part of government. Of course Chaplain Klingenschmitt's advocacy of a different meaning is protected by other First Amendment language. Daniel G. Gibbens Regents' Professor of Law Emeritus University of Oklahoma From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gordon James Klingenschmitt Sent: Wednesday, July 23, 2008 6:07 PM To: UCLA Law Class Subject: Appeals Court Bans Prayer 'in Jesus' name' 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.orghttp://www.prayinjesusname.org/, 719-360-5132 cell, [EMAIL PROTECTED]mailto:[EMAIL PROTECTED] WASHINGTON, July 23 /Christian Newswirehttp://www.christiannewswire.com// -- 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.pdfhttp://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]mailto:[EMAIL PROTECTED] Web address: www.PrayInJesusName.orghttp://www.prayinjesusname.org/ Source: http://christiannewswire.com/news/558917273.html ___ 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 agree with Doug, and would note the ways in which this case is similar to the Summum litigation currently pending in the Supreme Court. This case is to Marsh as the Summum litigation is to Van Orden, and I have sympathy for Rev. Turner the same way I have sympathy for the Summum plaintiffs (who are also inevitably bound to lose). This is the problem with the government speaking religiously; everyone wants to have the government espouse their views, and everyone (quite understandably) feels offended when it doesn't. Marsh and Van Orden commit us to a second-best theory of religious liberty, and there's just no good answer to the questions we face now. The Fourth Circuit's decision is here: http://www.acluva.org/docket/pleadings/turner_fourthcircuitopinion.pdf 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] 7/23/2008 7:15 PM Well actually, the court of appeals did not ban prayer in Jesus' name. Nor did the City of Fredericksburg ban prayer in Jesus' name. Prayer in Jesus' name is continuing all over the city. The City said it would not sponsor prayer in Jesus' name; if anything was banned, it was only at official city functions where the City controlled the agenda and thus controlled whether there would be a prayer at all. I agree that this is a very awkward decision. But it is the inevitable result once we start down the path of allowing government-sponsored prayers. Wrong answers is what the wrong questions beget, and when the answer is that the best solution is to restrict the religious content of prayers, the system has asked the wrong question. The only way to fix this is to reconsider Marsh v. Chambers. Quoting Gordon James Klingenschmitt [EMAIL PROTECTED]: Press release below. Please forward widely. Please call for interviews! In Jesus, Chaplain K. Appeals Court Bans Prayer 'In Jesus' Name' Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org, 719-360-5132 cell, [EMAIL PROTECTED] WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court of Appeals today ruled that the city council of Fredericksburg, Virginia had proper authority to require non-sectarian prayer content and exclude council-member Rev. Hashmel Turner from the prayer rotation because he prayed in Jesus' name. Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said: The restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith. Ironically, she admitted Turner was excluded from participating solely because of the Christian content of his prayer. A full text copy of the decision, with added commentary by Chaplain Klingenschmitt is here: www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf Gordon James Klingenschmitt, the former Navy chaplain who faced court-martial for praying in Jesus name in uniform (but won the victory in Congress for other chaplains), defended Rev. Hashmel Turner: The Fredericksburg government violated everybody's rights by establishing a non-sectarian religion, and requiring all prayers conform, or face punishment of exclusion. Justice O'Connor showed her liberal colors today, by declaring the word 'Jesus' as illegal religious speech, which can be banned by any council who wishes to ignore the First Amendment as she did. Councilman Rev. Hashmel Turner should run for mayor, fire the other council-members, and re-write the prayer policy. And if he appeals to the Supreme Court, I pray he will win, in Jesus' name. For media interviews, call: Chaplain Klingenschmitt 719-360-5132 cell Email: [EMAIL PROTECTED] Web address: www.PrayInJesusName.org Source: http://christiannewswire.com/news/558917273.html Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Appeals Court Bans Prayer 'in Jesus' name'
I agree with Professor Gibson that faithful Christians can pray without invoking the name of Jesus and with Professor Lund that this seems like the correct result under existing law (even Justice Scalia might agee) and I appreciate Professor Laycock's invocation of the great Alexander Bickel. Wrong answers is what the wrong questions beget, One of my favorite phrases. But I wonder if the right question is whether government, as we know it in the 21st century, ever can avoid speaking religiously. While the monument questions don't put the question in the starkest form, the more things on which government chooses to speak, the more likely it is to either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. Government can, of course, avoid speaking in expressly sectarian terms, but the idea that this avoids (or even softens) the religious insult seems empirically wrong and rooted in a view of what religion is and where it ought to be allowed that is itself not religiously neutral. Maybe that resolution - itself a very liberal protestant denouement - is the best we can do, although the idea that this has resulted in less division and more liberty is not self evidently true. But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' name really ought to constitute an establishment of religion. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Wednesday, July 23, 2008 7:15 PM To: religionlaw@lists.ucla.edu Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' Well actually, the court of appeals did not ban prayer in Jesus' name. Nor did the City of Fredericksburg ban prayer in Jesus' name. Prayer in Jesus' name is continuing all over the city. The City said it would not sponsor prayer in Jesus' name; if anything was banned, it was only at official city functions where the City controlled the agenda and thus controlled whether there would be a prayer at all. I agree that this is a very awkward decision. But it is the inevitable result once we start down the path of allowing government-sponsored prayers. Wrong answers is what the wrong questions beget, and when the answer is that the best solution is to restrict the religious content of prayers, the system has asked the wrong question. The only way to fix this is to reconsider Marsh v. Chambers. Quoting Gordon James Klingenschmitt [EMAIL PROTECTED]: Press release below. Please forward widely. Please call for interviews! In Jesus, Chaplain K. Appeals Court Bans Prayer 'In Jesus' Name' Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org, 719-360-5132 cell, [EMAIL PROTECTED] WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court of Appeals today ruled that the city council of Fredericksburg, Virginia had proper authority to require non-sectarian prayer content and exclude council-member Rev. Hashmel Turner from the prayer rotation because he prayed in Jesus' name. Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said: The restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith. Ironically, she admitted Turner was excluded from participating solely because of the Christian content of his prayer. A full text copy of the decision, with added commentary by Chaplain Klingenschmitt is here: www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf Gordon James Klingenschmitt, the former Navy chaplain who faced court-martial for praying in Jesus name in uniform (but won the victory in Congress for other chaplains), defended Rev. Hashmel Turner: The Fredericksburg government violated everybody's rights by establishing a non-sectarian religion, and requiring all prayers conform, or face punishment of exclusion. Justice O'Connor showed her liberal colors today, by declaring the word 'Jesus' as illegal religious speech, which can be banned by any council who wishes to ignore the First Amendment as she did. Councilman Rev. Hashmel Turner should run for mayor, fire the other council-members, and re-write the prayer policy. And if he appeals to the Supreme Court, I pray he will win, in Jesus' name. For media interviews, call: Chaplain Klingenschmitt 719-360-5132 cell Email: [EMAIL PROTECTED] Web address: www.PrayInJesusName.org Source: http://christiannewswire.com/news/558917273.html Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
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 [EMAIL PROTECTED]: Press release below. Please forward widely. Please call for interviews! In Jesus, Chaplain K. Appeals Court Bans Prayer 'In Jesus' Name' Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org, 719-360-5132 cell, [EMAIL PROTECTED] WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court of Appeals today ruled that the city council of Fredericksburg, Virginia had proper authority to require non-sectarian prayer content and exclude council-member Rev. Hashmel Turner from the prayer rotation because he prayed in Jesus' name. Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said: The restriction that prayers be nonsectarian in nature is designed to make the prayers accessible to people who come from a variety of backgrounds, not to exclude or disparage a particular faith. Ironically, she admitted Turner was excluded from participating solely because of the Christian content of his prayer. A full text copy of the decision, with added commentary by Chaplain Klingenschmitt is here: www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf Gordon James Klingenschmitt, the former Navy chaplain who faced court-martial for praying in Jesus name in uniform (but won the victory in Congress for other chaplains), defended Rev. Hashmel Turner: The Fredericksburg government violated everybody's rights by establishing a non-sectarian religion, and requiring all prayers conform, or face punishment of exclusion. Justice O'Connor showed her liberal colors today, by declaring the word 'Jesus' as illegal religious speech, which can be banned by any
RE: Appeals Court Bans Prayer 'in Jesus' name'
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 [EMAIL PROTECTED]: Press release below. Please forward widely. Please call for interviews! In Jesus, Chaplain K. Appeals Court Bans Prayer 'In Jesus' Name' Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org,UrlBlockedError.aspx 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.pdfhttp://www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf Gordon James Klingenschmitt, the former Navy chaplain who faced court-martial for praying in Jesus name in
RE: Appeals Court Bans Prayer 'in Jesus' name'
If I am reading Professor Esenberg's post correctly (and I am not sure that I am) he seems to be saying that government can never avoid speaking religiously. If that is his point, a lot depends on how one definesspeaking religiously. If speaking religiously includes saying anything that will either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant, he is probably correct that government can seldom avoid speaking religiously -- but that is an extremely broad understanding of religion for constitutional purposes. Most of us do not think that government acts religiously whenever its decisions will either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. (I may be quite annoyed if my son's public school only offers ham and cheese sandwiches at the cafeteria for lunch, but I would not characterize that conduct as acting religiously.) Indeed, it is hard to imagine how t! he religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d. I certainly agree that religion clause jurisprudence represents compromises among competing constitutional values -- and that these compromises can never be entirely free from costs. Still, prohibiting prayer (sectarian or otherwise) at a city council meeting, where the governing body typically engages in both legislative and administrative functions and individuals often ask the council directly to exercise power on issues that may impact a very small class or even a single person, should be an easy case. Under an endorsement test or a coercion test, government prayer in this context should be unconstitutional. Alan Brownstein UC Davis School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, July 24, 2008 12:54 PM To: Law Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' I agree with Professor Gibson that faithful Christians can pray without invoking the name of Jesus and with Professor Lund that this seems like the correct result under existing law (even Justice Scalia might agee) and I appreciate Professor Laycock's invocation of the great Alexander Bickel. Wrong answers is what the wrong questions beget, One of my favorite phrases. But I wonder if the right question is whether government, as we know it in the 21st century, ever can avoid speaking religiously. While the monument questions don't put the question in the starkest form, the more things on which government chooses to speak, the more likely it is to either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. Government can, of course, avoid speaking in expressly sectarian terms, but the idea that this avoids (or even softens) the religious insult seems empirically wrong and rooted in a view of what religion is and where it ought to be allowed that is itself not religiously neutral. Maybe that resolution - itself a very liberal protestant denouement - is the best we can do, although the idea that this has resulted in less division and more liberty is not self evidently true. But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' name really ought to constitute an establishment of religion. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Douglas Laycock [EMAIL PROTECTED] Sent: Wednesday, July 23, 2008 7:15 PM To: religionlaw@lists.ucla.edu Subject: Re: Appeals Court Bans Prayer 'in Jesus' name' Well actually, the court of appeals did not ban prayer in Jesus' name. Nor did the City of Fredericksburg ban prayer in Jesus' name. Prayer in Jesus' name is continuing all over the city. The City said it would not sponsor prayer in Jesus' name; if anything was banned, it was only at official city functions where the City controlled the agenda and thus controlled whether there would be a prayer at all. I agree that this is a very awkward decision. But it is the inevitable result once we start down the path of allowing government-sponsored prayers. Wrong answers is what the wrong questions beget, and when the answer is that the best solution is to restrict the religious content of prayers, the system has asked the wrong question. The only way to fix this is to reconsider Marsh v. Chambers. Quoting Gordon James Klingenschmitt [EMAIL PROTECTED]: Press release below.
RE: Appeals Court Bans Prayer 'in Jesus' name'
Professor Brownstein writes: Indeed, it is hard to imagine how t! he religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d. That is one way in which they can operate and it is the way we have chosen. The problem, of course, is that it doesn't reflect the way many religious believers feel that their lives ought to be lived. Because of that, it is a way that cannot accomplish our more ambitious objectives. It can't, as Justice O'Connor wished, keep all from feeling like religious outsiders. It can't achieve substantive neutrality. It can't even, as we have seen, avoid substantial division along religious lines. What it can do is enforce a particular view of the relative domains of the religious and the secular. One of the reasons that those lines have to be drawn in that way is the relatively low bar we have set for religious insult, e.g., Justice Kennedy's view that it was too much to ask Deborah Weissman to sit through a nondenominational prayer . Were we to apply that same degree of sensitivity to persons who must sit through, say, state sponsored speech promoting some set of views that, while not expressly religious, contradict the foundation of that persons religious beliefs, e.g., a program on the normative nature of homosexuality or a class on values clarification or some such thing, government as we have come to know it couldn't operate. One resolution may be to raise the bar for religious insult. If we can't protect religious outsiders from insult, then perhaps we ought not to try by imposing a particular view of the proper boundaries between the religious and the secular. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Brownstein, Alan [EMAIL PROTECTED] Sent: Thursday, July 24, 2008 4:32 PM To: Law Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' If I am reading Professor Esenberg's post correctly (and I am not sure that I am) he seems to be saying that government can never avoid speaking religiously. If that is his point, a lot depends on how one definesspeaking religiously. If speaking religiously includes saying anything that will either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant, he is probably correct that government can seldom avoid speaking religiously -- but that is an extremely broad understanding of religion for constitutional purposes. Most of us do not think that government acts religiously whenever its decisions will either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. (I may be quite annoyed if my son's public school only offers ham and cheese sandwiches at the cafeteria for lunch, but I would not characterize that conduct as acting religiously.) Indeed, it is hard to imagine how t! he religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d. I certainly agree that religion clause jurisprudence represents compromises among competing constitutional values -- and that these compromises can never be entirely free from costs. Still, prohibiting prayer (sectarian or otherwise) at a city council meeting, where the governing body typically engages in both legislative and administrative functions and individuals often ask the council directly to exercise power on issues that may impact a very small class or even a single person, should be an easy case. Under an endorsement test or a coercion test, government prayer in this context should be unconstitutional. Alan Brownstein UC Davis School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, July 24, 2008 12:54 PM To: Law Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' I agree with Professor Gibson that faithful Christians can pray without invoking the name of Jesus and with Professor Lund that this seems like the correct result under existing law (even Justice Scalia might agee) and I appreciate Professor Laycock's invocation of the great Alexander Bickel. Wrong answers is what the wrong questions beget, One
RE: Appeals Court Bans Prayer 'in Jesus' name'
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
RE: Appeals Court Bans Prayer 'in Jesus' name'
I understand that Professor Esenberg rejects Justice O'Connor's endorsement analysis, but it still isn't clear to me what he is offering as an alternative. If the argument is that it is improper to draw any boundaries between the religious and the secular in interpreting the religion clauses, I think that empties both clauses of substantive content. A classic establishment clause violation, such as compulsory attendance at a religious service, requires drawing a distinction between the religious (the service) and the secular (a court room or a math class). If he is suggesting that the majority should be free to commandeer government resources for the purpose of promoting and influencing the religious beliefs of citizens about worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d to the same extent that government uses its resources to communicate messages about patriotism, military service, public health, civil rights and a host of other value-based subjects, I disagree with his conclusions about the consequences of such action. I think we would have far less substantive neutrality and far more bitter divisions along religious lines than we do now -- and the degree to which people felt that they were being treated disrespectfully as religious outsiders (or favored as religious insiders) would increase dramatically. He may have a different line to propose. But if his line would allow government decision makers (on a city council) to insist that citizens stand in respectful attendance while a sectarian prayer is recited before they can present their concerns to the council at a public meeting, I think that line does far more than raise the bar on religious inequality and status harms. It also tolerates religious coercion. Alan Brownstein UC Davis School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, July 24, 2008 3:02 PM To: Law Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' Professor Brownstein writes: Indeed, it is hard to imagine how t! he religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d. That is one way in which they can operate and it is the way we have chosen. The problem, of course, is that it doesn't reflect the way many religious believers feel that their lives ought to be lived. Because of that, it is a way that cannot accomplish our more ambitious objectives. It can't, as Justice O'Connor wished, keep all from feeling like religious outsiders. It can't achieve substantive neutrality. It can't even, as we have seen, avoid substantial division along religious lines. What it can do is enforce a particular view of the relative domains of the religious and the secular. One of the reasons that those lines have to be drawn in that way is the relatively low bar we have set for religious insult, e.g., Justice Kennedy's view that it was too much to ask Deborah Weissman to sit through a nondenominational prayer . Were we to apply that same degree of sensitivity to persons who must sit through, say, state sponsored speech promoting some set of views that, while not expressly religious, contradict the foundation of that persons religious beliefs, e.g., a program on the normative nature of homosexuality or a class on values clarification or some such thing, government as we have come to know it couldn't operate. One resolution may be to raise the bar for religious insult. If we can't protect religious outsiders from insult, then perhaps we ought not to try by imposing a particular view of the proper boundaries between the religious and the secular. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Brownstein, Alan [EMAIL PROTECTED] Sent: Thursday, July 24, 2008 4:32 PM To: Law Religion issues for Law Academics Subject: RE: Appeals Court Bans Prayer 'in Jesus' name' If I am reading Professor Esenberg's post correctly (and I am not sure that I am) he seems to be saying that government can never avoid speaking religiously. If that is his point, a lot depends on how one definesspeaking religiously. If speaking religiously includes saying anything that will either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant, he is probably correct that government can seldom avoid speaking
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.
Re: Appeals Court Bans Prayer 'in Jesus' name'
Ms. Jean Dudley exactly makes my point! (Albeit in more colorful language :). Governments should not pray as governments, nor establish non-sectarian religion as the government's favored religion or the government's favored non-sectarian god. ON THE CONTRARY, our form of government was established to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America... which means PROTECTING each citizen's right to speak their mind, and pray according to personal conscience, (even in government forums, even as public officials), taking turns with equal opportunity. Governments do not have souls, and cannot be religious, but government officials do have souls, so they never shed their personal religion and personal rights at the door. John Whitehead with The Rutherford Institute has vowed to appeal Rev. Turner's case to SCOTUS, with this great quote: This ruling shows exactly how dangerous the government speech doctrine isit extinguishes free speech, stated John W. Whitehead, president of The Rutherford Institute. If the government can censor speech on the grounds that it is so-called government speech, it will not be long before this label becomes a convenient tool for silencing any message that does not conform to what government officials deem appropriate. In Jesus, Chaplain K. Jean Dudley [EMAIL PROTECTED] wrote: 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.
Re: Appeals Court Bans Prayer 'in Jesus' name'
On Jul 24, 2008, at Thu, Jul 24, 7:37 PM, Gordon James Klingenschmitt wrote: Ms. Jean Dudley exactly makes my point! (Albeit in more colorful language :). Governments should not pray as governments, nor establish non- sectarian religion as the government's favored religion or the government's favored non-sectarian god. ON THE CONTRARY, our form of government was established to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America... which means PROTECTING each citizen's right to speak their mind, and pray according to personal conscience, (even in government forums, even as public officials), taking turns with equal opportunity. And this is where my esteemed colleague* Mr. Klingenschmitt and I part company; I personally believe that prayer has no place in government forums. Not even to take turns with equal opportunity. If an ordained clergy cannot offer a non-sectarian prayer, they exclude those members of the audience (there on government business). That is counter to the spirit of establishment clause. Further, I see no reason why prayer should be included in any government forum as part of the proceedings. I'm of the mind that what gods there may be watching would rather we use our own best judgement rather than appealing to celestial parental figures for guidance or blessings. I find it disingenuous to claim that praying in Jesus' name is banned; It's happening all over America, and no one has gone to prison for it that I'm aware of. Finally, I'd like to suggest to Mr. Klingenschmidt to read Matthew 6. Note especially verse 6, and that the example prayer does not contain the phrase in Jesus' name. He might find this URL helpful : http://voiceofjesus.org/ whenyoupray1.html Jean Dudley *Ordained minister, and served in the US military for 9 years. But not as a chaplain. My ministry was not funded by the US government in any way. ___ 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.
