Posted by Richard Painter, guest-blogging: A Response on Ethics and Religion: http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1238200813
A few points of clarification. I am a proponent of prayer. Although the best place is a house of worship, any place will do. That can include a government building when a government employee is off-duty. Indeed, in addition to attending services regularly at St. John�s I at times joined the White House Christian Fellowship for its meetings on the third floor of the Eisenhower Executive Office Building (EEOB). Although the meetings were occasionally spoiled by an overzealous junior staffer or intern who prayed for political opponents and other assorted sinners, in general these meetings were conducted in a dignified manner; they were both informative and inspiring. The White House Christian Fellowship also lacked the problems that made Attorney General Ashcroft�s Bible studies vulnerable to the claim that there was pressure to go. None of the most senior White House staff attended and more than once I was the only commissioned officer in the room. All of this, however, was done in a personal capacity, usually over the lunch hour. Nobody ever characterized this or any other prayer group meeting as an official function of the United States government. This comports not only with the law, but with my understanding of prayer. I do not pray on behalf of the United States government. I ask forgiveness for my own sins not those of the United States government except to the extent they are in part my own. The Archbishop did not stop the prayer from going forward, or even try. Neither did I. It is difficult, however, to characterize a meeting that ends with a sectarian prayer, here a Christian prayer, as an official function of the United States government. When the prayer closely parallels the subject matter of the meeting, separating the personal capacity prayer from the official capacity meeting is artificial. It is also difficult to hold a productive meeting to conduct official government business when some employees of the government entity because of their personal religious convictions might not be able to participate in that meeting to the same extent as others. These may have been some of the problems that the Archbishop wondered about. Regardless of whether a country has a constitutional bar on state establishment of religion � England in fact has an official church � the practical problems are the same. It would not matter if the meeting were to be held in the EEOB or in Whitehall in London; if a Jewish or Muslim member of the staff attended the meeting, the situation could get awkward Personal functions would encroach on the official to an extent that conduct of official business could be impaired. These are not problems created by lawyers or by bishops. These are problems inherent in any society where people of different faiths live together and conduct the business of government together. I doubt the lines here are best drawn by courts or by legal rules. These lines are best drawn by common sense. The meeting in my view ended up being unofficial, which is fine. If I had known, I would have suggested that the Archbishop be invited to attend a meeting of the White House Christian Fellowship or some other private group. That was not, however, the original intent of the invitation. Finally, analogizing this situation to ceremonial functions such as an inauguration or a state funeral is inapposite. There are longstanding traditions of bringing religious elements into these ceremonies, usually in a way which is widely understood not to interfere with the objective and which may even promote it. An interesting law review article could be written on the lawsuit that was served on the Chief Justice demanding an injunction against a Presidential oath ending in �so help me God�. Just about everyone, however, could predict the outcome of that litigation. Whatever time the Chief Justice spent reading the complaint probably would have been better invested rehearsing the oath of office. Once again, I do not claim expertise in Establishment Clause issues. Government ethics rules � here those against endorsement -- are designed to stop people well short of conduct which violates the Constitution. The issue is whether whatever we do, particularly that which we do in an official capacity, interferes with public confidence in the proper functioning of our government. As an aside, I should respond to one commentator who suggested that a White House ethics lawyer could �take away my money, my job, or my liberty, using the power of the state.� Actually, I did nothing of the kind. I did ask several people who voluntarily chose to work for the government to sell some investments, including investment bank stock, at prices far in excess of what those investments would be worth today, while throwing in deferment of capital gains tax with an Office of Government Ethics certificate of divestiture. I have written in my book that this process needs to be simplified. I have to say however that many of the people I helped come into government have a lot to be thankful for, just as the Country should be thankful for their service.
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