October 5, 2008

Today's First Religion Question

Does the National Day of Prayer violate the Establishment Clause?

Legal Framing Of Question

This is the basic, straight-ahead question asked bya lawsuit filed Friday by the Freedom From Religion Foundation. Although the complaint details various permutations of the theory, the essence of the claim can be found in one sentence, paragraph 22 of the complaint:

The designation of a National Day of Prayer has the intent and effect of giving official recognition to the endorsement of religion; a National Day of Prayer has no secular rationale.
To justify the various Presidential and Gubernatorial proclamations of the National Day of Prayer, it seems to me the Government (and the various States) have four possible avenues of response:
  1. The plaintiffs lack standing to challenge the National Day of Prayer because they are not harmed by it. Prayer by theists does not harm non-theists in any material fashion.
  2. The proclamation has a secular purpose of some sort.
  3. The National Day of Prayer is not understood by a large number of people to possess religious significance and therefore does not violate the Establishment Clause.
  4. The Establishment Clause, either in its current understanding or in conformity with the original intent of its authors, prohibits the Government from establishing a particular religion, but does not prohibit it from promoting religion in a generalized sense.
Each of these avenues of attack is lacking.

Easy Avenues Of Defense

First, the plaintiffs do have standing. A non-theist who is personally asked to tolerate a governmental expression of theism does indeed suffer a harm -- the harm of being non-members of a state-established religion and therefore excluded from certain kinds of participation in public life. Take, for instance, a local tradition here in the High Desert -- the Mayor's Prayer Breakfast. In addition to praying together, the Mayor's Prayer Breakfast provides a forum in which public issues are discussed, elected and appointed public officials mingle and network with the leaders of religious congregations and other religious members of the community, and for which the local press sends representatives to document the public piety (and therefore moral praiseworthiness) of the participants. A non-theist must either participate in the event and thereby act contrary to her non-theistic world view, or be excluded from it.

Second, I cannot for the life of me think of what secular purpose is advanced by the government urging people to pray. It is called not a "National Day of Meditation and Contemplation," which would potentially might have some minimally-justifiable secular purpose. It is a National Day of Prayer. Prayer is an inherently religious activity by definition (unless it refers to the request for relief at the end of a lawsuit, which obviously is not the intent of the phrase in question).

Third, for a similar reason it is difficult indeed to even imagine that the public in general does not attribute religious significance to the National Day of Prayer. To the extent that people notice it going on, it contains an explicit urging by the President to engage in prayer, an inherently religious activity, and refers to God in the singular and masculine tenses with a reference to the Book of Psalms as an unquestioned religious authority. How this could not be interpreted by people in a nation consisting overwhelmingly of subscribers of the Christian faith to be a reference to Christianity (with Judaism thrown in as a nod to the many Jewish Americans and the historical parent of Christianity) is beyond me.

But then again, I don't believe in "secular deism," either. A reference to God is inherently religious. Simply put, the President is urging people to engage in an inherently religious activity and further encouraging that they select a particular brand of religion. That the President was authorized to make this urging by Congress in no way exonerates it from the Constitution. The Government is urging the citizens of America to worship Jehovah. That is an Establishment. If the Government urged Americans to worship Allah, no one would even think to proceed beyond looking at the face of the proclamation before objecting to it as violating their rights. So when it becomes clear that the Government has urged Americans to worship Jehovah, the Court can reach a full stop, end it analysis, and render judgment.

These all seem to be pretty easy answers to me. It is the last avenue of defense, the one that for reasons above the Court need not reach, that are more interesting.

Can The Government Promote Religion Generally?

The fourth avenue of defense, of course, is what the activists want the Court to reach. If the Government won't raise that avenue of defense, an amicus brief filed will.

For the basic reason I articulated above -- the fact that promotion of religion has the effect of excluding non-theists from participation in public events -- my answer to this question is "no."

The basic line of reasoning here follows the school prayer cases. There are five big cases you need to know to understand the school prayer reasoning. The first is McCollum v. Board of Education (1948) 333 U.S. 208. McCollum dealt with a "released time" program. The school district in Champaign, Illinois had a program by which local priests and ministers came to the public schools during school hours and taught about their religious beliefs. Students who wanted to opt out of these programs could do so without academic penalty. The plaintiff alleged that in practice, certain Protestant denominations were favored over others, and that her son was ostracized by her fellow students because he did not participate in these activities. The Supremes said, "Yeah, that is pretty much grade-A bullshit."

Well , more formally, they said (in an 8-1 decision) at 333 U.S. 208, 211-212:
To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case [Everson v. Board of Education (1947) 330 U.S. 1] the First Amendment has erected a wall between Church and State which must be kept high and impregnable. [¶] Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State.
Note the express incorporation of the "separation of Church and State" concept that traces back to the days of Jefferson and Madison, the two principal architects of the government's neutrality to religion.*

Next, what is probably the most important case in the series for its discussion of the historical pedigree of separation in the context of the Establishment Clause, is Engle v. Vitale (1962) 370 U.S. 421. The Engle case challenged a requirement that each teacher begin each day by leading the class in a prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Again with only one dissenting vote, the Supremes said "No way:"
It was in large part to get completely away from ... systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights, with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself. [¶] [The Framers] knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.
Prayer in school seemingly reached an end with the case of Abington Township School District v. Schempp (1963) 374 U.S. 203, which again held, 8-1, that Bible study during public school class time is not Constitutional. After Engel v. Vitale, that result seems obvious. More important are the concepts articulated in the opinion, which held that with respect to religion, "The government is neutral, and, while protecting all, it prefers none, and it disparages none," and "When government ... allies itself with one particular form of religion, the inevitable result is that it incurs 'the hatred, disrespect and even contempt of those who held contrary beliefs.'" Importantly, the fact that a lot of people are of a particular religious belief is of no moment: "While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs."

In Lemon v. Kurtzman (1971) 403 U.S. 602, the Court examined a law allowing a public school district to reimburse a religious school for secular textbooks used in the religious school. It articulated a three-part test to determine if a governmental activity, specifically legislation dealing with religion, violates the Establishment Clause. The test is as follows:
  1. The legislation must have a secular purpose;
  2. The legislation must not have the primary effect of either advancing or inhibiting religion; and
  3. The legislation must not result in an "excessive government entanglement" with religion.
If the legislation in question violates any one of these prongs, it violates the Establishment Clause. The third prong is a little bit abstract; the Court recognized this and said that "excessive government entanglement" is determined after an analysis of "...the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." Now, that seems a little bit similar to the second prong but there is a difference there if you look carefully at it.

Finally, there is Santa Fe Independent School District v. Doe (2000) 530 U.S. 290,** in which the Court examined a student-initiated and student-led prayer before the start of a high school football game. (Note that the area in question is Santa Fe, Texas, not Santa Fe, New Mexico. High school football is serious business in Texas.) The prayers were facially non-denominational, but invoked God in the singular, masculine tense and occasionally referenced Jesus. The court found that the prayers took place
...on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer. [Therefore,] Regardless of the listener's support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school's seal of approval.
It seems no wonder to me that this would have made non-theistic students who did not want to participate in the prayer feel uncomfortable and excluded from the events around them -- especially because they involved high school football games, which are often the biggest and most important social events in many small towns in Texas.

With that backdrop of Constitutional Law in mind, it seems obvious to me that government cannot advance religion generally, because 1) as a practical matter, any advancement of religion generally advances the Judeo-Christian body of religions to the detriment of other religions, and 2) has the effect, if indeed not the intent, of causing those who do not believe in God to be at least partially excluded from certain public, governmentally-sponsored activity.


It seems a foregone conclusion that the Freedom From Religion Foundation should win this case. I do not think the Court needs to reach the Lemon test in order to rule in favor of the plaintiffs, although I certainly hope it does. To the extent that this is another salvo fired by one or another side in the culture wars, the whole thing is unfortunate -- but atheists are not the ones that conscripted the cowards in Congress and enlisted a willing pasty in the White House to systematically violate the Constitution in Jesus' name.

* I don't want to revisit the issue of Madison and Jefferson's personal religious beliefs here. Their personal religious beliefs are completely irrelevant to the issue of whether they thought the government should be involved in religion. As to that, Jefferson was the guy who coined the phrase "wall of separation" with respect to the proper relationship of government and religion. And Madison, who I concede was a deeply religious man, was a hawkish guardian of the idea of keeping the two strictly distinct from one another, and he spoke wisely when he said:
[I]t is proper to take alarm at the first experiment on our liberties. ... Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?
** I skip Lee v. Weisman (1992) 505 U.S. 577, because it functionally re-affrims Engle v. Vitale; the facts were different but the result is, for my purposes, close enough that we can treat it as a narrow re-affirmance of the Lee case.


jimmc4416 said...

I approve this message!!
James T. McCollum,
Attorney (retired) and the object of the McCollum case and son of the Relator, Vashti Cromwell McCollum

Burt Likko said...

How awesome is that! Thanks and feel free to come back anytime.