Re: Floodwaters and Undermined Walls
In a message dated 9/1/2005 4:11:37 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: In a purely legal vein, I would note that the governor's call carries no penalty for noncompliance, nor any penalty for complying by praying differently, or to a different deity. These define a standard by which adventures in Establishment Clause violations could be measured. In fact, I suspect that a record of evidence could be mounted to show that, in the early history of our country, at least in the colonial period, that individual but public failure to honor days of fasting and prayer did, in fact, carry these kinds of penalties, and help to characterize and define the established nature of the respective colonial state churches. Of course, what happened in the colonial period, or in the States before Incorporation, for that matter, does not per se inform us of the meaning of the Establishment Clause but, as with the jailing of Baptist preachers, it can provide a persuasive backdrop against which to argue for Jefferson's or Madison's view of maximizing religious liberty. 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.
RE: Floodwaters and Undermined Walls
Yes, calling Jim Henderson's first post "an effort to raise legitimate [Establishment Clause wall] questions that was probably unnecessarily provocative" seems a civil expression of forgiveness for "those who (verbally) trespass against us." And Frances Paterson be praised for calling that effort what it was. Dan Gibbens University of Oklahoma -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber Sent: Friday, September 02, 2005 7:36 AM To: religionlaw@lists.ucla.edu Subject: Re: Floodwaters and Undermined Walls 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
Re: Floodwaters and Undermined Walls
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/religi
Re: Floodwaters and Undermined Walls
In a purely legal vein, I would note that the governor's call carries no penalty for noncompliance, nor any penalty for complying by praying differently, or to a different deity. In short, it's not on all four squares with Judge Dement's decision (for which he won the Profiles in Courage award, if I recall correctly.) On the other hand, that's about all New Orleans has. The recommendations to rebuild the barrier islands were non-starters when proposed in the Reagan administration, nor have we had the Congressional will for it since then. So government action that could have reduced, slowed and perhaps stopped the storm surges wasn't taken. The plans by the U.S. Army Corps of Engineers to bolster the levees to prevent the breach from the Ponchartrain were defunded by the current administration, so that work has been on hold for at least three years (do you think the administration will agree to fund the project now?). FEMA's concerns about water contamination after such disasters have been put on the back burner -- funding issues again. The question about whether FCC should require the elevation of the platforms cell towers and processors rested on sorta got shuffled off the table by the FCC's preoccupation with other, more burning issues, like Janet Jack! son's breast. So those platforms all sit at 11 feet above sea-level, too low to have withstood the flood waters. Cell phone service is out. NOAA's great job of weather forecasting came despite slowed funding, and in the face of calls to stop gathering weather information in great detail to save money (after all, the TV weather guys now have their own radar, right?). And we all know that there is no government action to reduce human contributions to global warming, which increases the frequency and severity of such cyclonic storms. So, with the present bunch in Washington, it seems all New Orleans has is a prayer. It's not enough. But I'd bet on a reversal of those policies in Washington, before I'd bet that anyone files suit against the governor of Louisiana. Her call for prayer doesn't exhibit any of the problems Judge Dement noted in the earlier case. Let's not get distracted by unlikely hypotheticals. North Carolina, Florida, Texas, and other coastal areas can still be saved, with action. Ed Darrell Dallas[EMAIL PROTECTED] wrote: 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. Or point your browser to 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 Se
Re: Floodwaters and Undermined Walls
[EMAIL PROTECTED] wrote on 09/01/2005 03:06:40 PM: > In a message dated 9/1/2005 2:39:50 PM Eastern Standard Time, > [EMAIL PROTECTED] writes: > > The provision of material needs tells me that my leaders are aware > > of shortages and doing their job to meet them. The call to prayer > > tells me that the leaders' hearts are with me as well. > > I simply don't understand why the former doesn't tell one > that "my leader's hearts are with me as well." For me, it's just a case that a person can send "things" impersonally from a distance. A call to prayer, however, is much more personal, a knitting together of the hearts, so to speak. But that might just be the way it comes across to me. > Moreover, why is it > perfectly legitimate to say we may not know God's reasons for > rejecting prayer, but we can know all sorts of other things about > God's reasons and His commitments. No gay marriage, no abortion, no > premarital sex, and so forth. Unless there's some obvious > explanation why we have only selective knowledge of God's reasons, > we should, in my opinion, take God's "not answering prayers" as > revealing a moral deficit about God. Fair question. I don't want to lead us too far off-topic into theology, but as I understand it, we can know what He tells us, and for many of us, Scripture is clear on gay marriage, abortion, premarital sex, and so forth. Scripture doesn't tell us what His answer will be to every single thing we pray. Sometimes it'll be "yes", sometimes it'll be "no", and sometimes it'll be "wait". All Scripture tells us is that when we are with Him, we'll understand why He said "yes" in one instance and "no" in another. Until then, it's a question of faith. I could say more, but again, I don't want to pull us too far off-topic. If you want to follow this thread further, I'd be more than happy to do it off-list, though, so as not to let theological discussion about the nature of God's relationship with man to get in the way of the legal discussion that we're primarily about here. Brad___ 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: Floodwaters and Undermined Walls
In a message dated 9/1/2005 2:39:50 PM Eastern Standard Time, [EMAIL PROTECTED] writes: The provision of material needs tells me that my leaders are aware of shortages and doing their job to meet them. The call to prayer tells me that the leaders' hearts are with me as well. I simply don't understand why the former doesn't tell one that "my leader's hearts are with me as well." Moreover, why is it perfectly legitimate to say we may not know God's reasons for rejecting prayer, but we can know all sorts of other things about God's reasons and His commitments. No gay marriage, no abortion, no premarital sex, and so forth. Unless there's some obvious explanation why we have only selective knowledge of God's reasons, we should, in my opinion, take God's "not answering prayers" as revealing a moral deficit about God. Back to the constitutional controversies. It seems to many that those pushing for prayer in school, the Ten Commandments on governmental property, and so forth, are more concerned about these issues than alleviating human suffering. And the amount of money someone contributes to relief efforts hardly rejects this impression. I'm not accusing Jim of this or anyone else on this List. But controversies over the separation of Church and State and the role of religion in the public square seem more important to some than doing all one can personally and politically and through calling for an increase in taxes to benefit the least of us. This is, to be sure, only an impression. But it seems to be a systemic part of the response to catastrophe on the part of some people who claim to be devout theists. I don't wish to speak for Frances Patterson, but I understood him to be infuriated at what (again) seems to be the priorities of some theists. So even if Frances' remarks were intemperate, the idea behind them might be true, not necessarily of true of Jim, but true of others nonetheless. That we can appreciate devastation and raise EC questions at the same time is of course true. But one still wonders whether in the long run the EC questions are more important than the human suffering. Again I'm not accusing Jim of this; nor am I rejecting the propriety of raising EC questions in times of devastation. But priorities are always relevant. And just as some members of the List challenged my statements about the causes of 911--wrongly I think--regarding the fact that we must be able to absolutely condemn terrorists while simultaneously seeking causal explanations of their acts and of the acts of non-terrorists who might root for them, we can ask about the priority of raising EC questions in the present context of the New Orleans devastation. The questions, if the intemperate language, is legitimate, in my view, and can shed light on some of the underlying reasons for the intractability of some EC controversies. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ 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: Floodwaters and Undermined Walls
Were there penalties in the past, they would have pre-dated the Establishment Clause, and so would not be relevant to EC litigation. Washington's actions are noteworthy, perhaps: Congress sent him (non-binding) resolutions calling for days of prayer or fasting; Washington carefully edited out references to Jesus or other specific deific mentions, and issued (non-binding) calls for days of thanks, etc. Washington also lived long before Keynes noted that governments need not sit idly by and watch disaster happen. But Washington was rarely, if ever, accused of sitting on his hands. As a behind-the-scenes instigator of the Constitutional convention, he rather clearly demonstrated his bias for action as far as humans can go, before, during and after resort to prayer. And at his inaugural, once the official, government exercises were done, Washington and company adjourned to a church up the street, away from the government hall, for prayer and a sermon. I think Judge Dement would have approved of that, too. Surely there should be no less separation after incorporation. We can learn a lot from history. Ed Darrell Dallas[EMAIL PROTECTED] wrote: In a message dated 9/1/2005 4:11:37 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: In a purely legal vein, I would note that the governor's call carries no penalty for noncompliance, nor any penalty for complying by praying differently, or to a different deity. These define a standard by which adventures in Establishment Clause violations could be measured. In fact, I suspect that a record of evidence could be mounted to show that, in the early history of our country, at least in the colonial period, that individual but public failure to honor days of fasting and prayer did, in fact, carry these kinds of penalties, and help to characterize and define the established nature of the respective colonial state churches. Of course, what happened in the colonial period, or in the States before Incorporation, for that matter, does not per se inform us of the meaning of the Establishment Clause but, as with the jailing of Baptist preachers, it can provide a persuasive backdrop against which to argue for Jefferson's or Madison's view of maximizing religious liberty. Jim Henderson Senior Counsel ACLJ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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: Floodwaters and Undermined Walls
I don't spend a lot of time worrying about the exact words government officials use to respond to catastrophes, but Art makes a very legitimate point here. It's not hard to come up with language that is inclusive. When we face disasters as a people, and feel the need to speak as a people, and recognize the need to work together to overcome the adversity we face, shouldn't our leaders try to speak in ways that work for everybody. Even if Scalia is right that only 2.3% of us will be left out of a non-denominational, monotheistic message (and I don't think he is), why shouldn't officials try to use language that reaches out to those people as well. Alan Brownstein UC Davis Art wrote, As to the proclamation, I do wish it had said something more like "My family and I are praying, and I call upon those who wish to do so to join us, and I call upon others to work and hope for relief from this disaster in the way that's meaningful to them." That wouldn't have been so hard to say, would it? ___ 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: Floodwaters and Undermined Walls
What the Establishment Clause in the abstract means is one thing; whether as a practical matter any body would or should enforce the maximum possible reading of the clause is something again. I have often urged on the Jewish community some exercise of judgment over what issues result in law suit. I have however been burnt more than once when those urging greater permissible involvement of religion with government cite the practice I have urged not be challenged as a mater of prudence as evidence of a (de facto) concession that the constitution does not enact a wall of separation. It takes no imagination at all to guess that the next time that there is a law suit about official prayers, the governor’s call yesterday will be cited as evidence that the challenged prayer is acceptable. If Jim will agree not to so cite it, I am happy not to challenge it and to urge others to do the same. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Thursday, September 01, 2005 2:18 PM To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: Re: Floodwaters and Undermined Walls In a message dated 9/1/05 1:48:47 PM, [EMAIL PROTECTED] writes: Well, I know now what I always suspected. If I cried out to Jim Henderson for succor, he might well help me but one part of his mind would be thinking or at least considering if he could use my suffering to advance his agenda. Frances Paterson For all we know Jim has sent a bigger contribution to the New Orleans relief effort than any of the rest of us. If Jim were in Louisiana he might be staffing a Red Cross shelter; my recollection is that he does a lot of personal (non-legal) pro bono work here. I doubt that any of us who aren't near New Orleans are devoting 100% of our attention to the suffering in New Orleans; I'm working on a brief. I share [EMAIL PROTECTED]'s view that there was nothing offensive about Jim's post. As to the proclamation, I do wish it had said something more like "My family and I are praying, and I call upon those who wish to do so to join us, and I call upon others to work and hope for relief from this disaster in the way that's meaningful to them." That wouldn't have been so hard to say, would it? Art Spitzer ACLU ___ 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: Floodwaters and Undermined Walls
I'm not sure there is anything the governor could have done in the time it took to issue a call to prayer that wasn't already being done. And in time of crisis, like 9/11 or Hurricane Katrina or anything else of such a devastating magnitude, there are many of us who find a call to prayer as recognizing that there are more needs than just the material "down-to-earth" ones. The provision of material needs tells me that my leaders are aware of shortages and doing their job to meet them. The call to prayer tells me that the leaders' hearts are with me as well. Brad P.S. Regarding the eficacy of prayer, for reasons we may not know, God doesn't always say "yes" to everything we ask, but that's a subject for another list. Paul Finkelman wrote on 09/01/2005 01:26:54 PM: > One might think that instead of spending time issuing calls for > prayer, the governor would focus on more down-to-earth matters. The > call for prayers also of course raises a different practial > question. When I moved to Oklahoma the state was in the middle of > huge drought, with no rain for months. Rather than call for water > conservation, the governor called on everyone to pray for rain the > next Sunday (apparently the Gov. did not think God heard the prayers > of Jews, Moslems, or Adventists). Despite the huge humber of > churches in this state, and I presume many prayers for rain, there > was no rain and the drought continued. So miuch for the efficacy of > prayer.! I suspect that our many friends in Louisian and > Mississippi would rather have bottled water or another bus to get > out of the city than prayers. > > Paul Finkelman ___ 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: Floodwaters and Undermined Walls
Frances Paterson wrote on 09/01/2005 12:48:08 PM: > Well, I know now what I always suspected. If I cried out to Jim > Henderson for succor, he might well help me but one part of his mind > would be thinking or at least considering if he could use my > suffering to advance his agenda. I'm not sure you're being fair here. Whose suffering is he using to advance any agenda? I saw him referring to an expected EC challenge to the governor's proclamation of a Day of Prayer. Truth be told, if I had heard on the news about the governor's proclamation, I would've wondered how long it would take for somebody to say it was a violation of the EC, but that wouldn't and doesn't keep me from being horrified at the suffering that dwarfs a person's ability to comprehend. The two aren't mutually exclusive. Brad Pardee___ 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: Floodwaters and Undermined Walls
One might think that instead of spending time issuing calls for prayer, the governor would focus on more down-to-earth matters. The call for prayers also of course raises a different practial question. When I moved to Oklahoma the state was in the middle of huge drought, with no rain for months. Rather than call for water conservation, the governor called on everyone to pray for rain the next Sunday (apparently the Gov. did not think God heard the prayers of Jews, Moslems, or Adventists). Despite the huge humber of churches in this state, and I presume many prayers for rain, there was no rain and the drought continued. So miuch for the efficacy of prayer.! I suspect that our many friends in Louisian and Mississippi would rather have bottled water or another bus to get out of the city than prayers. Paul Finkelman Gene Summerlin wrote: I'll come to Jim's defense. I don't think it is inappropriate to note on a religion law list that the Governor of Louisiana has declared a day of prayer, and that some people have advocated that such pronouncements violate the EC clause, or that such a pronouncement if given over a school's public address system in Alabama, would violate Judge DeMent's injunction. Nor do I think Jim's post was cruelly indifferent to the very real grief and suffering taking place in the Gulf Coast region. Jim noted his horror as the situation turned from the "terrible to the unimaginable." Gene Summerlin Ogborn, Summerlin & Ogborn, P.C. 210 Windsor Place 330 South Tenth Street Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (facsimile) (402) 730-5344 (mobile) [EMAIL PROTECTED] www.osolaw.com From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of [EMAIL PROTECTED] Sent: Thursday, September 01, 2005 11:21 AM To: religionlaw@lists.ucla.edu Subject: Floodwaters and Undermined Walls 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. Or point your browser to 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.u
Re: Floodwaters and Undermined Walls
In a message dated 9/1/05 1:48:47 PM, [EMAIL PROTECTED] writes: Well, I know now what I always suspected. If I cried out to Jim Henderson for succor, he might well help me but one part of his mind would be thinking or at least considering if he could use my suffering to advance his agenda. Frances Paterson For all we know Jim has sent a bigger contribution to the New Orleans relief effort than any of the rest of us. If Jim were in Louisiana he might be staffing a Red Cross shelter; my recollection is that he does a lot of personal (non-legal) pro bono work here. I doubt that any of us who aren't near New Orleans are devoting 100% of our attention to the suffering in New Orleans; I'm working on a brief. I share [EMAIL PROTECTED]'s view that there was nothing offensive about Jim's post. As to the proclamation, I do wish it had said something more like "My family and I are praying, and I call upon those who wish to do so to join us, and I call upon others to work and hope for relief from this disaster in the way that's meaningful to them." That wouldn't have been so hard to say, would it? Art Spitzer ACLU ___ 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: Floodwaters and Undermined Walls
In Frances Paterson's defense, while this may be the place for the "noting" that Henderson did, considerations of appropriate time are also relevant. And just now, when we don't even know how many people have died, haven't recovered their bodies, haven't even necessarily rescued all the trapped, does not strike me as a felicitous moment for a substantive discussion (as opposed to baiting one's perceived adversaries from the security of one's intact and dry home or office). David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. On Thu, 1 Sep 2005, Gene Summerlin wrote: > I'll come to Jim's defense. I don't think it is inappropriate to note > on a religion law list that the Governor of Louisiana has declared a day > of prayer, and that some people have advocated that such pronouncements > violate the EC clause, or that such a pronouncement if given over a > school's public address system in Alabama, would violate Judge DeMent's > injunction. > > Nor do I think Jim's post was cruelly indifferent to the very real grief > and suffering taking place in the Gulf Coast region. Jim noted his > horror as the situation turned from the "terrible to the unimaginable." > > Gene Summerlin > Ogborn, Summerlin & Ogborn, P.C. > 210 Windsor Place > 330 South Tenth Street > Lincoln, NE 68508 > (402) 434-8040 > (402) 434-8044 (facsimile) > (402) 730-5344 (mobile) > [EMAIL PROTECTED] > www.osolaw.com ___ 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: Floodwaters and Undermined Walls
I'm with Frances, in terms of the Establishment Clause issue that Jim has raised. In terms of the issue, this to me is just like the latitude that Bill Marshall has argued should be granted regarding post-9/11 religious observances. To quote Bill's article, "The Limits of Secularism: Public Religious _expression_ in Moments of National Crisis and Tragedy," 78 Notre Dame L. Rev. 11 (2002) (the title really says it all): "In the end, I suggest in this Essay that the tension between the constitutional commitment to anti-establishment and the societal need to engage in collective religious exercise can be accommodated by a doctrine that allows for government support for religion in limited and exceptional circumstances The constitutional value of secularism is in its instrumental role, not in its own orthodoxy. As such, the adherence to secularism need not be absolute. There may be moments of national crisis and grief when instrumental values pale and it becomes constitutionally permissible to pierce the secular veneer." Marshall, 78 Notre Dame L. Rev. at 33. David T. Ball, Esq.Associate DirectorOhio Legal Assistance Foundation10 W. Broad St., Suite 950Columbus, OH 43215voice: 614-644-1582fax: 614-728-3749cell: 614-316-8222www.olaf.org From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, September 01, 2005 1:11 PMTo: religionlaw@lists.ucla.eduSubject: Re: Floodwaters and Undermined Walls Jim Henderson, you are beyond disgusting. People are dying. They were gasping out their last breaths or cradling a loved one--a child, a mother or father--in distress as you wrote your post. Save your idelogical arguments for another time. I'm sorry, Eugene, but this is too much so don't bother to scold/reprove. Perhaps I no longer want to be part of this listserv when one of its members demonstrates such cruel indifference to human grief and suffering. Frances R. A. Paterson, J.D., Ed.D.Associate ProfessorDepartment of Educational LeadershipValdosta State UniversityValdosta, GA 31698 ___ 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: Floodwaters and Undermined Walls
In a message dated 9/1/2005 9:58:58 AM Pacific Standard Time, [EMAIL PROTECTED] writes: 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. Or point your browser to 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 According to the site here (http://www.laed.uscourts.gov/), the federal court in New Orleans is closed until further notice. The ACLU of Louisiana is also located in New Orleans and also, presumably, incapacitated. As far as I've heard, the only one who has reacted to this tragedy by thinking about who should get sued is the senior counsel at the ACLJ. These are important facts to consider when choosing which organization more needs and deserves our contributions, though, personally, my contributions will first go to the material needs of the people before I consider the long term protection of their religious freedom. As to the substantive point, disfavoring religious proclamations by the executive branch did not begin with Judge Dement, but stretches back to the primary author of the First Amendment himself. I quote James Madison: "Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed. Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers. The objections to them are 1. that Govts ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms. 2. The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever, in the same manner as any other individuals might do. But then their recommendations ought to express the true character from which they emanate. 3. They seem to imply and certainly nourish the erronious idea of a national religion. The idea just as it related to the Jewish nation under a theocracy, having been improperly adopted by so many nations which have embraced Xnity, is too apt to lurk in the bosoms even of Americans, who in general are aware of the distinction between religious & political societies. The idea also of a union of all to form one nation under one Govt in acts of devotion to the God of all is an imposing idea." See Madison's 1817 "Detached Memorandum" at this link/address: http://press-pubs.uchicago.edu/founders/documents/amendI_religions64.html Allen Asch ___ 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: Floodwaters and Undermined Walls
In a message dated 9/1/05 1:31:06 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Nor do I think Jim's post was cruelly indifferent to the very real grief and suffering taking place in the Gulf Coast region. Jim noted his horror as the situation turned from the "terrible to the unimaginable." Well, I know now what I always suspected. If I cried out to Jim Henderson for succor, he might well help me but one part of his mind would be thinking or at least considering if he could use my suffering to advance his agenda. Frances Paterson ___ 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: Floodwaters and Undermined Walls
I'll come to Jim's defense. I don't think it is inappropriate to note on a religion law list that the Governor of Louisiana has declared a day of prayer, and that some people have advocated that such pronouncements violate the EC clause, or that such a pronouncement if given over a school's public address system in Alabama, would violate Judge DeMent's injunction. Nor do I think Jim's post was cruelly indifferent to the very real grief and suffering taking place in the Gulf Coast region. Jim noted his horror as the situation turned from the "terrible to the unimaginable." Gene SummerlinOgborn, Summerlin & Ogborn, P.C.210 Windsor Place330 South Tenth StreetLincoln, NE 68508(402) 434-8040(402) 434-8044 (facsimile)(402) 730-5344 (mobile)[EMAIL PROTECTED]www.osolaw.com From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, September 01, 2005 11:21 AMTo: religionlaw@lists.ucla.eduSubject: Floodwaters and Undermined Walls 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. Or point your browser to 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.
Re: Floodwaters and Undermined Walls
Jim Henderson, you are beyond disgusting. People are dying. They were gasping out their last breaths or cradling a loved one--a child, a mother or father--in distress as you wrote your post. Save your idelogical arguments for another time. I'm sorry, Eugene, but this is too much so don't bother to scold/reprove. Perhaps I no longer want to be part of this listserv when one of its members demonstrates such cruel indifference to human grief and suffering. Frances R. A. Paterson, J.D., Ed.D. Associate Professor Department of Educational Leadership Valdosta State University Valdosta, GA 31698 ___ 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.
Floodwaters and Undermined Walls
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. Or point your browser to 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.
