Tuesday, September 25, 2007

Don't pray for murder victims

I agree that it is a shame that the Madison-based Freedom From Religion Foundation was able to convince the state to remove a prayer and a hymn from a memorial service for murder victims. I guess we're all safe from theocracy for another week.

But the sad fact is that their legal position wasn't crazy and I understand why the DOJ caved. There is room to defend the prayer and hymn. One could, for example, argue that this is more like an invocation opening a session of the legislature than it is like a graduation ceremony at which attendance is, at least practically, "mandatory" and the audience consists of minors.

But the fact of the matter is that under either the Court's here today-gone tomorrow-back next week (and aptly named) Lemon test or under Justice O'Connor's much maligned endorsement test (a/k/a What Would Sandra D)o, the ceremony was very vulnerable to court challenge.

Both the Lemon and endorsement tests (arguably a restatement of Lemon) are so malleable as to be meaningless. As I argued in a recent scholarly piece (and as many others have), the concept of endorsement is problematic. It tends to work in a disaggregated fashion with the question of endorsement turning only on the particular action in question without consideration of everything the government does or does not do. It requires judges to adopt the mindset of a hypothetical observer who may bear no relationship to what real people think. It assumes that neutrality is an achievable goal. It's not. The idea of segregated secular and spiritual worlds is a very modern liberal protestant concept. It embodies a conception of nonestablishment that is very questionable on historic and policy grounds.

Eugene Volokh thinks that a recent decision from the 9th Circuit holding that the transfer of federal land on which people have been constructing a memorial cross to a private party violates the endorsement test might serve as a vehicle for jettisoning the test altogether.

I am not so sure. I agree that it is possible that there may be four justices willing to eliminate or substantially modify the endorsement test. But will they believe that they can get Anthony Kennedy to buy into something that they can agree with. Kennedy has, on the one hand, suggested that coercion has something to do with violations of the establishment clause but he has attended to define it expansively, such that it may simply collapse into non-endorsement.


illusory tenant said...

A "shame"? Why is it a shame?

Aren't there any churches where prayer services for victims of violent crime might be conducted?

Billiam said...

The real "SHAME" is the complete and total mis-interpretation of the Establishment Clause. It was NEVER intended to remove Religion from the public square. Sadly, this perversion of it's intent continues.

Anonymous said...

Our goverment was set up so all could be heard and non-excluded. Van-Hollen has no back bone to stand up for the people.

illusory tenant said...

Anon 10:04 wins Irony of the Day.

Anonymous said...

It ought to be noted that the conflict is truly problematic because of the presence of state officials -- there in their role as state officials -- and compelling of state employees to attend . . . and on paid worktime, our dime.

Yes, holding this in a church, making it voluntary, not having officials there in their role as officials -- all would have gone forward without a problem.

The planners of this event caused the problem for the AG, who did his job. Good on the law prof for saying so.

illusory tenant said...

Duly noted.

Anonymous said...

Where is it written that only secularist are allowed to speak. Are the aethieist saying that they were somehow excluded, or, are they saying that they want a monopoly in the public?

It does not appear to me that the goverment was excluding anyone from this event until now.

Anonymous said...

The government was not INcluding anything but a Christian hymn and a Christian minister. That's part of the problem. For those who espouse freedom of religion, they could at least see to it that such events are ecumenical.

But that still doesn't address the problem for agnostics and atheists, whom the law protects with freedom from religion just as much as it protects freedom of religion.

So the solution for those who want a religious service is to move it to a religious site -- as part of the problem also is that this is a state-sponsored site.

And then it would be more clear that state workers ought not to leave work to go to a religious service during the workday and be paid for it (even if at last year's pay). Got it?

Anonymous said...

Anon 2:32 -

Hogwash, all you're saying is that you don't want to hear religion because it offends your sensitive little ears. That is not how this country was set up, nor should the secularist think that they can have a monopoly on this goverment.

I didn't read about any group being turned down or discriminated against except the Lutheran Pastor and hymnn. The event appears to have been open to anyone which is how goverment should work. By the way, I'm not a Lutheran and I don't sing hymns, I simply want goverment to be fair to all as was intended in its founding.

Anonymous said...

Well, I am Anon 2:32 again, and I am a Christian -- not a Lutheran -- and I sing in my church choir. So you are the one full of hogwash with your presumptions about what I want (as well as about my ears).

And I also know my American history, as you don't. You really need to read the works of Thomas Jefferson -- an agnostic -- for starters. . . .

And if you didn't read about a group that said it was being discriminated against by this event, then you didn't read the original stories. We can't click for you.

At least we agree that we want the government to be fair to all. And additionally, I want government workers to do their work when I'm paying. You want to pay them to go to this event? Then pay them yourself for time off -- call the Capitol, find out who was going, ask for how long, ask how much they make, put the check in the mail. . . .

Anonymous said...

anon 3:39 - Jefferson wrote claiming that he is a Christian and he created the Jefferson Bible with the teachings of Christ that he carried with him. So, as far as you knowing your history, I suggest you go back to the books.

Rick Esenberg said...

It is a shame because, if the government is going to do things like commemorate murder victims, it is neither neutral nor responsive to the needs of its citizens when it cannot acknowledge the way in which most of its citizens speak about such things. Secular ground is not necessarily ground that everyone can occupy or will regard as evenhanded.

My own view is that having a hymn and what I expect was a generic theistic prayer at this event runs no risk of establishing religion or of impinging upon anyone's rights in a way that arise to the level of establishment. It might be nice to have a constitutional guarantee to be free of expressions which interfere with your religious or irreligious beliefs, but it's not possible.

Anonymous said...

Would you - and those demanding the prayer - feel the same way if it was a Muslim prayer to Allah? A Wiccan invocation? Or would you maybe feel just a little uncomfortable, like the service was excluding you, like you didn't really belong there?

Well, maybe that's how non-Christians, or non-believers, feel when they attend a public event and are subjected to sectarian prayer. I know I do.

Anonymous said...

If it's okay, then tomorrow when I go to class at my UW campus, I am going to take class time to lead my classmates in a Yom Kippur prayer.

Who the heck cares that we're paying the professor to do something else on state time?

If you're not even going to address the compelling of state employees to sit through Christian prayers on our time, for which we paid taxes, then let's have prayer in public schools -- a Jewish prayer.

And all those people waiting for callbacks from those state workers, for their state paperwork to be processed by those state workers? As we say, let us pray. . . .

Anonymous said...

Anon 3:52, you seem to be confusing agnosticism with atheism, for one.

Yes, I'm familiar with the Jefferson Bible. If you were, you would know that Jefferson admired Jesus greatly -- as a philosopher, for his ethical system. He did not believe in Jesus' divinity and considered himself a follower and a Christian in that sense -- but he was against institutionalized religion so was not a Christian in the sense that you seem to mean.

Jefferson also did not consider the evangelists' additions worthy and removed them, as well as many other changes. Check it out. (As it happens, I disagree with Jefferson on almost all of his changes but attempt to emulate him in actually reading the Bible -- and his Bible.)

Anonymous said...

Anon - 6:12,

The way our country was set up is to allow everyone to express there beliefs, so, that does mean access to all beliefs. There is no establishment of one religion or belief under those conditions.

Anon - 10:11,

Jefferson claimed to be a Christian and I don't believe an agnostic would ever do such a thing. I'm familiar with Jeffersons Bible as well as many versions. Jefferson simply extracted the teachings of Christ, which he lived by and tried to teach everyone that he could. It is errorneous to say that he did not respect the followers of Christ because that is where he extracted the teachings of Christ from. You can't say from a sane mind that the writers are not reliable but then rely on there teachings.

Jefferson wrote that he was a Christian and followed Christ teachings. That is more than what many Christians do today.

Rick said that allowing the prayer and hymnn would not rise to establishing a religion.

I don't agree with him on much but here he is right but I think should further his arguement by showing that goverment interest is not served by discriminating against a large segment of its population.

Anonymous said...

"Say nothing of my religion. It is known to my god and myself alone."
-- Thomas Jefferson

Anonymous said...

On April 21, 1803, Thomas Jefferson wrote to Dr. Benjamin Rush, who was also a signer of the Declaration of Independance:

"My views...are the result of a life of inquiry and reflection, and very different from the anti-christian system imputed to me by those who know nothing of my opinions.
To the corruptions of Christianity I am, indeed, opposed; but not to the genuine precepts of Jesus Himself.
I AM A CHRISTIAN in the only sense in which He wished any one to be; sincerely attached to His doctrines in preference to all other..."

anon...do you think you know better than Jefferson himself when he confessed that he was a Christian, not a deist?

illusory tenant said...

Secular ground is not necessarily ground that everyone can occupy or will regard as evenhanded.

The purported commemorative function here is directed toward the victims and survivors of violent crime.

The government can commemorate them according to the common ground they all occupy, as victims and survivors of violent crime.

If the commemoration doesn't involve religious ritual, then I suppose it is a "secular" commemoration.

How, then, can all victims and survivors of violent crime possibly not regard that as evenhanded?

They think the government should provide religious rituals?

Rick Esenberg said...


The notion that the absence of God is neutral ground is wrong. It may be ground that people who believe or want the constitution to establish a secularized public square prefer, but it's not neutral.

If government is going to get into things like commemorating deaths (and its not at all obvious why it should), then, within some broad limits, it ought to be free to do so in a way that reflects the manner in which the community it serves typically does such things.

A- 6:12 wonders whether this could make nonadherents feel uncomfortable. I don't doubt that's so. Being in a minority does that and I recall feeling that way when I used to work out at the JCC notwithstanding the excellent and courteous service and friendly members. But, neutrality being impossible, I don't think there is a constitutional remedy for that feeling.

Anonymous said...

IT said - They think the government should provide religious rituals?

The goverment should open such a commemoration to all people that wish to participate, without discrimination - not only to a secular view.

I do not wish to interfer any further with Ricks response to you because I think he is making very good points.

Anonymous said...

The JCC and the state Capitol are two very different sites. Public grounds just are different by law, as you know. The other is sponsored by a specific faith, not taking taxes from those of other faiths. So if you weren't comfortable there, you weren't paying taxes for it (and you always could go to "secular" Vic Tanny's).

Me, I find exercise uncomfortable anywhere.

illusory tenant said...

None of which answers my question, but thanks anyway. If the government sees fit to commemorate crime victims, let it commemorate them as crime victims per se, and not as Christian, or Wiccan, or Zoroastrian crime victims.

What they have as common ground is that they are crime victims, and if someone is going to complain about the lack of evenhandedness in treating crime victims as crime victims, then, have at it.

It's like complaining that my Wisconsin driver's license has no Jesus fish on it.

Anonymous said...

IT - your obvious prejudice blinds you from the bigger picture whereby you try to fit us all into your narrow little world.

Are you afraid that someone might hear something that you don't believe or that the goverment might actually do what it was intended to do all along, be fair to all and not give one group a monopoly over all others?

I think the figure is that only 2.36% of the worlds population is aethiest, which probably represents this country as well. Are you claiming that our goverment intended to keep the 97.64% of people out of goverment and public speaking?

If you are, I have lost a lot of respect for someone that I thought had some intellectual capacity.

illusory tenant said...

Right, because my suggestion that the government's function should be tailored to the broadest appeal, in this particular case, based on the self-evident commonality of those it seeks to commemorate and for what specific reason, is an attempt to fit you all into my narrow little world.

Rick Esenberg said...


The problem is with the suggestion that you can exclude religion and be less with a common ground that everyone can agree on. That's just not true and its not religiously neutral. If you tell people who believe that you cannot address the question of human sexuality or of addiction recovery or even of the commemoration of murder victims without reference to God that they should and must, then you have endorsed a religious (or irreligious) view other than their own. You have, to cop Justice O'Connor's phrase, made them feel like disfavored members of the political community.

I understand that some people say that they ought to just get over it because the Constitution mandates a "religion free zone." I don't share that view but, in any event, the notion of endorsement and is unhelpful.

illusory tenant said...

You have, to cop Justice O'Connor's phrase, made them feel like disfavored members of the political community.

Oh come on. The government's not turning this event into a tent revival disfavors Christians? It never should have planned to include those elements in the first place.

I fail to see what's so unhelpful about the question of endorsement, aside from its importation from tort doctrine of a “reasonable observer” test. If there's any question upon which it's nigh impossible to find a reasonable observer, it's a religious question.

Look at Anon's stats: For every 100 observers, there are only 2.36 reasonable ones.

But seriously, the government can and does speak on any number of things without infusing them with religion. There's no reason why sex, drugs, or death require the ceremonial warbling of contemporary Christian hits any more than statements of tax policy.

Government isn't endorsing irreligion or disfavoring the religious simply because it doesn't offer some scriptural justification for its latest budget reallocations.

Rick Esenberg said...

There's no reason why sex, drugs, or death require the ceremonial warbling of contemporary Christian hits any more than statements of tax policy.

Maybe not, but if the idea is for the government to be neutral between religion and irreligion and refrain from endorsing either (and SCOTUS says it is), then you or I or the state don't get to say whether it is necessary or not. If you claim to be able to teach children how to make decisions about sex without reference to their faith, you are claiming that they can do so. That's obviously fine for you, but, as you know, there are people who don't believe it is. Taking their children and teaching them that questions that they believe may only be answered religiously can (and perhaps should) be answered from an entirely secular perspective is taking sides on what is for them a religious question. It is endorsing a view of the role of religion that they do not share. It may even be endorsing views that they regard to be sinful.

You may say that the government can hardly avoid running afoul of someone's religious precepts and that is probably right. And that's why neutrality and nonendorsement are not really possible and largely unhelpful.

Anonymous said...

If you're bringing in sex ed, you're moving this from the state Capitol to the public schools.

You can't be saying that such questions raised in public schools ought to be answered with religious answers! Whose religion? Some of us actually live in diverse neighborhoods; my kids went to a school with kids from dozens of religions. I did not want them to get, say, the Catholic or Buddhist answer about sex.

It's the role of the parents, from their religious perspectives, to have their kids get religious answers.

They can do it themselves, as I did, or put them in Sunday school, as I did. Or they can put them in religious schools, as my parents did with me.

And these days in this state, parents even can get the taxpayers to pay for it from funds that ought to go to public schools.