Sunday, April 18, 2010

Judge Crabb's Establishment Clause Ambition

I am not going to go ballistic over Judge Barbara Crabb's decision that the National Day of Prayer - an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic - violates the Establishment Clause.
She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn't always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb's decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don't think she handled them in the right way.
It would be hard for me to conclude otherwise. I have argued - here and here - that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things - teach sex education, values clarification or promote patriotism - that could cause religious dissidents to "feel like outsiders." The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.

My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.

But there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional - notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted - particularly if they are have a long pedigree.

The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb's position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.

Cross posted at the Marquette University Law School Faculty Blog

11 comments:

Nick said...

"In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things - teach sex education, values clarification or promote patriotism - that could cause religious dissidents to "feel like outsiders." The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based."

While that may in fact be true, how can one conclude that encouraging people to pray is anything but religious? While sex education can have religious impacts and connotations based on the approach, there are also non-religious sexual teachings, and non-religious goals connected with them.

There are absolutely no non-religious connotations to prayer, and absolutely no non-religious goals to prayer either.

You seem to be arguing that its possible to carve out exceptions to a strict Establishment test... but even by your examples, I think prayer does not meet that test.

Billiam said...

Here's my problem with all these cases. The Constitution plainly states "Congress shall make no law respecting an establishment of religion.." Now, Congress has made no law, not even a defacto law. The founders were concerned with a repeat of the Church of England happening here, and the corruption that went with it, hence, the wording of the 1st Amendment. Sadly, like so many other parts of the Constitution, it has been twisted so far out of line from it's original intent, that it's hardly recognizable. The National Day of Prayer in no way requires anyone to pray. For myself, I'm tired of those who want to thoroughly trash the Constitution, and the judges who enable them.

John Foust said...

Nick, I think what he's trying to say is there's no difference between the President saying that he prefers peanut butter and jelly for lunch, and various levels of government hiring third-party faith-based groups to tell us that PB&J are great, preferably in a room with a Cross on the wall, and a prayer before eating.

AnotherTosaVoter said...

A National Day of Prayer is necessary, why? It's a pointless waste of time.

I look forward to the folks who complain that by not being encouraged to pray, Christians are in effect being fed to the lions.

Billiam said...

'Tosa, it's not about whether it's needed. It wouldn't mean anything to me if it had never been declared. Just another pol looking to score points. The bigger issue, at least to me, is the perversion of the 1st Amendment. As to your point about some going overboard on this, well, there will always be those on the fringe.

Free Lunch said...

So, what is the secular purpose of public prayer?

PaulNoonan said...

"establishment requires something more than mere endorsement."

I hate this phrase. It makes me wonder if the term "establishment clause" hasn't mucked up precedent.

The clause in question (as I need not tell a law prof) is "respecting an establishment of religion". And "Respecting" certainly does not require something more than endorsement (stare decisis be damned). People (lawyers, federal judges, Supreme Court Justices) seem to just ignore this word like it's not even there.

Having the government declare a day for people to pray is an endorsement of religion. I don't know how you can think anything else.

AnotherTosaVoter said...

Billiam, I think we agree in general. I'm not the type who'd really care about declaring the thing unconstitutional. I don't know a lot about the case, but rather than a pol getting headlines, isn't this a judge making a ruling on a case before them?

Paul, great post. I wonder if our religious friends would object if it were called a national day of reflection, or meditation? What if the President chanted a mantra?

Or best yet, what would the reaction be if a President said that for this year's National Day of Prayer, instead of bowing our heads once, we're going to get down on a mat, facing Mecca, 5 times?

Somehow I am willing to bet the religious right would have a significant problem with what that might establish.

Anonymous said...

"It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government."

If this isn't ipse dixit, I don't know what is. The arguments advanced here presuppose an equality between the government doing something with an overtly religious implication (e.g. dedicating a day, "on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." 11 U.S.C. §119) and the government doing anything at all with which anyone might disagree on religious grounds (e.g. promoting patriotism). I disagree that this is the case and think such an assertion requires some backing. Moreover, this post mischaracterizes the caselaw as an attempt to avoid giving any religious offense whatsoever. The cases (including the one at issue here) are really more about preventing the government from taking overtly religious stands.

How about backing up the assertion that the "mere endorsement" is the equivalent of a fundamentalist christian not having her suppositions upheld by a public school? This equivalency is the basis for professor's suggested solution.

Mondrienne said...

As Judge Crabb mentioned in her opinion, a significant problem with the declaration of the National Day of Prayer is its roots as an anti-communism measure, and a call for all Americans to find Jesus. Now, while the statute mentions prayer generally (although only churches are mentioned), it was intended to be exclusive to the Christian faith and was based on a now-obsolete fear of a political ideology.

(Now, I do realize that legislative intent or legislative history are given deference by the Courts only when it conveniences them, ... just sayin'.)

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