Wednesday Writs: War on Christmas Edition

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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49 Responses

  1. In my view the best way to think about the establishment clause especially if you’re skeptical, is to imagine the establishment or endorsement of a faith that is not your own.Report

    • dragonfrog in reply to michaeljdavis24 says:

      Absolutely! Anyone who would object to having their legal disputes considered in a courthouse where the judge sits below a plaque with the five pillars of Islam or to picnicking under a statue of Baphomet on the Oklahoma capitol grounds – they get it, they just may or may not cop to getting it when it comes to whether Christianity should get the same considerations.Report

    • George Turner in reply to michaeljdavis24 says:

      Did Congress pass a law funding the nativity scenes? If not, then we should be good.

      When the establishment clause was passed, several states still had government funded churches, and those weren’t disestablished in some states until after the second great awakening in the early to mid 1800’s. The First Amendment\s provision is more easily read as a guarantee that the federal government won’t intrude on the states by making them all agree on one religion, so that Episcopal states didn’t have to wrestle with Congregationalist states in the halls of Congress. Under that reading, the establishment clause conveys no personal right and thus shouldn’t be incorporated under the 14th Amendment.Report

      • If the government is using its resources to endorse a specific faith, that’s the threshold for endorsement. George, would you be just fine with an American courtroom having the five pillars of Islam etched on the wall? Report

        • George Turner in reply to michaeljdavis24 says:

          Sharia courts are common in Europe and Canada, so I guess that’s inevitable here, too.

          The historical precedent of the existence of established churches in several of the states, one until the 1830’s, would indicate that as long as the courtroom was a state court and not a federal court, even a sectarian religious display could pass muster.

          Some of these establishment issues cropped up again in the late 1800’s with the debates about admitting Utah. Such issues might reappear if the Supreme Court ever gets a Protestant justice to add at least a small bit of diversity to the current religious makeup, which is more reflective of the demographics of Renaissance Rome than the US.Report

          • You lost me at “Sharia courts are common in Europe and Canada.”Report

            • George Turner in reply to michaeljdavis24 says:

              Well, it’s a pretty hot topic that sometimes flares up in Ottawa and European capitals, with one side arguing that sharia is incompatible with civil law, others arguing that not recognizing sharia law is government control and censorship of religion, others arguing that only religious bigots are opposed to sharia law, or that sharia is actually just a way of life.

              In Britain there’s a push to grant Muslim women the same rights they enjoy in Islamic countries, or that British women enjoy, since in Britain many Muslim women have to go to sharia councils (there are 85 of them) to adjudicate things like divorce.

              And of course irate Muslims often protest for the imposition of sharia law to non-Muslims, but they’ll have to increase their numbers for to vote that in.Report

          • Chip Daniels in reply to George Turner says:

            Since the First Amendment only mentions the Federal government:

            Can California tax religious property then?
            Can Los Angeles obligate parochial schools to offer abortion services to their students?

            Just trying to map out the boundaries here.Report

            • Jaybird in reply to Chip Daniels says:

              Yeah, this was my argument for why vouchers ought to be able to be used for Catholic Schools. It’s not the government doing the religion thing, it’s the citizen themselves. Indeed, telling them that they cannot use the voucher for Catholic Schools is, in effect, prohibiting the free exercise thereof.

              The argument persuaded fewer than I’d have liked.Report

              • Chip Daniels in reply to Jaybird says:

                The catch with all these “religious liberty” things is that Christians are moving from the majority to the minority.

                So all the things that citizens are allowed to do- like invocations, holiday banners, clubs- will be less and less Christians doing them, and more and more seculars/ Muslims/WhatHaveYou doing them.

                So like Christian citizens paying taxes which support Tet festivals, tax vouchers going to Islamic madrassas, children coming home singing songs to the Goddess Gaia.

                Because it was never intended to be this way; “Religious liberty” in most forms was intended to allow the Christian majority to use the power of numbers to overpower all other faiths.Report

              • Jaybird in reply to Chip Daniels says:

                I don’t know whether to root for the Christians who will be saying “if we couldn’t, then you shouldn’t be able to” or rooting for the non-Christians who point out that celebrating Culture is different from celebrating religion and people shouldn’t be prevented from celebrating their culture.Report

              • Pinky in reply to Chip Daniels says:

                No. Religious liberty was never conceived to help the Christian majority. It developed in a culture that was nearly all Christian, and related to disputes between denominations. And it was never intended for the majority. At all. How would that even work?Report

              • Chip Daniels in reply to Pinky says:

                I mean in the way that the term is being used today.

                It is being used to allow the majority to discriminate against the minority.

                For example religious bakers to refuse to print messages that offend their faith or religious pharmacists to refuse to fill prescriptions that offend them.Report

              • Jaybird in reply to Chip Daniels says:

                Yeah, Steven Crowder had a bit where he visited Muslim bakeries and asked them to make a gay wedding cake and they turned him down.

                We need to have a system where people aren’t allowed to do that.Report

              • Chip Daniels in reply to Jaybird says:

                What’s funny is, your second sentence is what conservatives say in sarcasm, but liberals say in earnest.Report

            • Aaron David in reply to Chip Daniels says:

              California has its own free speech protections:

              (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

              Not sure about the taxes of religious property, but as far as offering abortion services, it would fail under the above speech law and the fact that slavery is no longer legal, try as you might.Report

            • Marchmaine in reply to Chip Daniels says:

              Not since the 14th amendment passed.

              George’s reading is, um, anachronistic.Report

              • George Turner in reply to Marchmaine says:

                It’s anachronistic, but is it wrong? Brennan had big problems with the current interpretation, as does Justice Thomas. In Elk Grove v Newdow (2004) Justice Thomas in part II of his concurrence presents an argument against the current view, saying in part:

                The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” Amdt. 1. As a textual matter, this Clause probably prohibits Congress from establishing a national religion. But see P. Hamburger, Separation of Church and State 106, n. 40 (2002) (citing sources). Perhaps more importantly, the Clause made clear that Congress could not interfere with state establishments, notwithstanding any argument that could be made based on Congress’ power under the Necessary and Proper Clause. See A. Amar, The Bill of Rights 36—39 (1998).

                Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from “abridging [particular] freedom[s].” (Emphasis added.) This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. See, e.g., 2 J. Story, Commentaries on the Constitution of the United States §1873 (5th ed. 1891); see also Amar, The Bill of Rights, at 32—42; id., at 246—257. History also supports this understanding: At the founding, at least six States had established religions, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1437 (1990). Nor has this federalism point escaped the notice of Members of this Court. See, e.g., Zelman, supra, at 677—680 (Thomas, J., concurring); Lee, supra, at 641 (Scalia, J., dissenting).

                Quite simply, the Establishment Clause is best understood as a federalism provision–it protects state establishments from federal interference but does not protect any individual right. These two features independently make incorporation of the Clause difficult to understand.

                Indeed, there’s almost no way to reason a path from the text of the Establishment Clause to any of the currently popular penumbras of it. It is far more probably that a protection against “encountering” a different religion wouldn’t even have occurred to any of the Founders, and that if such a protection is desired, it should be made afresh either through legislation or state constitutions.Report

  2. Oscar Gordon says:

    WW7: Dude! Just let it go! If you can not convict the man fairly, then you don’t have a case.Report

  3. Jaybird says:

    WW2: There was a period there when law schools, in an effort to not close during a drought, relaxed standards allowing students to go there who might not have made the cut a decade prior.

    I’m wondering if this is one of the fruits of that particular decision or if this is merely a happy coincidence.Report

  4. Aaron David says:

    WW9 – And Carlos Danger has name jealousy.Report

  5. Burt Likko says:

    Lynch v. Donnelly, and specifically Justice Brennan’s dissent, is also remarkable for the first appearance of a concept (a pernicious one, IMO) in Establishment Clause jurisprudence called “ceremonial deism.” Brennan anticipates future litigation (which in fact did subsequently happen) and sets out the limits of his own theory of application of Lemon with this remark:

    …[S]uch practices as the designation of “In God We Trust” as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow’s apt phrase, as a form a “ceremonial deism,” protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.
    Lynch v. Donnelly, 465 U.S. 668, 671, 716 (1984) (Brennan, J. dissenting).

    I call it “pernicious” because it does something to the culture which should be bothersome to both secularists and sectarians. It says that something overtly religious, like a prayer (as in Marsh v. Chambers, 463 U.S. 783, 791-792 (1983)) is not religious at all.
    The notion that a prayer — a core act of worship, faith, belief, and interaction with the divine — is so devoid of meaning that it has lost all religious significance whatsoever is, in my estimation, an outright insult to those who do find spiritual value in that exercise.

    It is also an insult to the intelligence of those who do not share that faith because it requires them to pretend that their neighbors of faith, who are visibly getting something they value from the exercise, are somehow not doing exactly that they are doing.

    That “ceremonial deism” is a lying label is amply demonstrated by the strong religious affiliations of the people and groups which sally forth to invoke it when governmental practices are periodically challenged by the likes of the ACLU, Freedom from Religion Foundation, or similar groups. Justice O’Connor herself wrote that the late addition of a reference to God in the Pledge of Allegiance was ceremonial deism and therefore not a violation of the Establishment Clause, after acknowledging that the Pledge existed in God-free for for nearly a century with nary a peep about it from America’s ministers and priests and pastors. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 36-38 (2004) (O’Connor, J., concurring). Despite the fact that she acknowledges secular challenges to the explicit invocation of God in the Pledge dating back to at least 1968, id at 39, she baldly asserts that

    …a reasonable observer, fully cognizant of the history, ubiquity, and context of the practice in question. Such an observer could not conclude that reciting the Pledge, including the phrase “under God,” constitutes an instance of worship. I know of no religion that incorporates the Pledge into its canon, nor one that would count the Pledge as a meaningful expression of religious faith. Even if taken literally, the phrase is merely descriptive; it purports only to identify the United States as a Nation subject to divine authority. That cannot be seen as a serious invocation of God or as an expression of individual submission to divine authority.

    Never mind that a solemn reference to God, imposed by the state upon individuals, which “identif[ies] the United States as a nation subject to divine authority,” id., appears to impermissibly endorse religion over non-religion, which is a violation of the contours of the Establishment Clause as described in Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).

    In practice, the Pledge isn’t a survival question for secular Americans seeking to avoid a governmentally-imposed invocation of the supernatural; in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Court rather famously held that Jehovah’s Witnesses, whose religious beliefs prohibit doing so, cannot be compelled to recite the Pledge of Allegiance. But it’s worth noting from an intellectual point of view that Barnette was decided on freedom of speech grounds as a “compelled speech” issue. The Witnesses’ rights of freedom from Establishment and of Free Exercise were not the grounds upon which their goal was achieved.

    As it stands, the law tells people that certain invocations of religion are devoid of religious significance. This is not just sophistry, it is nonsense upon stilts. And we have Justice William Brennan, of all people in the pantheon of American legal demigods, to thank for introducing this concept to the lexicon of the Supreme Court.Report

    • Lee Ratner in reply to Burt Likko says:

      Something like ceremonial deism existed since the start of American Republic in one form or another because a good portion of Americans were very religious Protestants. For most of American history, at least a good plurality saw the United States as a Protestant country despite the very clear wording of the Constitution. The Catholic school system started because a lot of Roman Catholic parents correctly saw public schools as basically being Protestant schools in all but name with their KJV Bible readings and school prayer. You can’t really ignore deeply held beliefs in a democracy despite what the law says, so ceremonial deism was created as a sop even though a name wasn’t put to it until recently.Report

      • Burt Likko in reply to Lee Ratner says:

        Surely, this does not require pretending that a prayer is not an act possessed of religious significance. Nor ought we pretend that the Framers might have articulated high ideals and then failed to live up to them in practice, for they were humans and not demigods.Report

        • DensityDuck in reply to Burt Likko says:

          “this does not require pretending that a prayer is not an act possessed of religious significance.”

          The argument is that “In God We Trust” is not a prayer, so, this criticism isn’t valid.Report

          • dragonfrog in reply to DensityDuck says:

            Sure, a prayer is different from a creed. The Nicene Creed isn’t a prayer either.Report

          • Burt Likko in reply to DensityDuck says:

            You’re missing the point of my criticism of ceremonial deism. The point is that it claims things that have religious significance do not. Prayers are the most obvious example of this, but they are not the only ones.

            “In God We Trust” isn’t a prayer, it’s a motto. A motto is an expression of a sentiment, a value, an aspiration on the part of the entity (here, the U.S. government) adopting it.

            What sentiment, value, or aspiration is expressed by the phrase “In God We Trust”? It inherently indicates that the government there is a God in whom one might trust. It also indicates that God is worthy of trust. It therefore endorses religion over non-religion.

            If the motto “In God We Trust” didn’t do those things, then religious people wouldn’t get so upset about the proposal to remove it from our money. It is therefore a motto invested with religious significance.

            Now, the prayer used to open sessions of the Nebraska Legislature in Marsh v. Chambers, however, most definitely was actually a prayer. It, too, was dismissed as ceremonial deism. But, the critique is not limited to prayers. The critique is of the notion of ceremonial deism, which goes beyond the realm of a “legal fiction” into the realm of the law intentionally blinding itself to reality.Report

            • DensityDuck in reply to Burt Likko says:

              “You’re missing the point of my criticism of ceremonial deism. ”

              No, I’m understanding your point just fine, I’m saying it’s directly addressed by the reasoning of the Court and your entire post was redundant.Report

        • LeeEsq in reply to Burt Likko says:

          I don’t think its’ so much that the Framers failed to live up to them in practice, they did have Sunday post delivery for decades because of secularism. Its more like that the Framers were a lot less religiosu than the bulk of the American population and that subsequent politicians found it easier to just go along with this higher religisoity because they believed it themselves or because it caused less headaches for them.Report

    • DensityDuck in reply to Burt Likko says:

      “I call it “pernicious” because it does something to the culture which should be bothersome to both secularists and sectarians. It says that something overtly religious, like a prayer…is not religious at all.”

      If a government building rents a room to a yoga instructor, is that a violation of the establishment clause? Given that yoga has an overtly spiritual dimension to its practice and is far closer to being a “prayer” than vague references to a nondenominational God?Report

      • greginak in reply to DensityDuck says:

        Counterpoint: Yoga as often practiced has nothing spiritual about it. It’s exercise; light strength work and stretching. I know many people who yoga and none of them invest anything spiritual in it.

        Interestingly it is the very serious about Cultural Appropriation crowd who insist that yoga is always spiritual and if you aren’t doing it that way you are bad. And that white folk doing it is CA.Report

        • dragonfrog in reply to greginak says:

          Tangentially related – I knew a fellow in Brazil who had long practiced yoga as a physical / meditative practice, who decided after the death of his father to go to India to really immerse himself in yoga. He selected a school, travelled to India, and on the first day found himself in a quite full room, wondering how they were going to stretch their bodies.

          This was his introduction to the yoga of scriptural study rather than bodily stretching.

          Rather than quit or go seek a school of yoga of the type he was familiar with, he decided to see his decision through, travelled to the nearest town with good bookstores to acquire the basis of a crash course in Sanskrit, and extended his stay.Report

      • Burt Likko in reply to DensityDuck says:

        I suggest that you run through the Lemon test yourself, show your work, and ask if people agree or disagree with your analysis.Report

        • DensityDuck in reply to Burt Likko says:

          Seems to me that doing this for yoga would be–how did you put it?–an outright insult to those who do find spiritual value in that exercise.Report

          • DensityDuck in reply to DensityDuck says:

            and my point in bringing this up is that if you’re gonna get mad and tell us how “In God We Trust” is a specific religious statement that comes from a specific religious tradition, then there are things even more specific than that which you ought to be getting mad at as well. Native American traditions are more overtly religious than describing the United States as “one nation under god”, are we gonna ban peyote ceremonies on public lands?

            …or you can argue that yoga has descended so far from its religious traditions that it’s just Generically Spiritual with some completely flavorless allusions to metaphysics, which, that’s exactly what the Court said about Ceremonial Deism.Report

            • Burt Likko in reply to DensityDuck says:

              Or I could argue that your yoga class in a room rented from a government entity is not likely to be something I’m obliged or under official pressure to participate in.

              Or I could argue about “In God We Trust,” as I did before, that it is a governmental endorsement of religion over non-religion. It needn’t be from a specific religious tradition to accomplish that purpose.Report

              • CJColucci in reply to Burt Likko says:

                Or, the government can rent out its space to private groups, religious or secular, on neutral terms. This can get tricky. The government could rent out space for a secular family counseling group, but might have to be willing to rent it to a religious family counseling group. Or it could ban certain uses, regardless of whether the sponsoring group is religious or secular. So if I can’t use the space to promote a secular mud-wrestling exhibition, a religious group that uses athletic events as a recruiting device can’t use the space for Mud-Wrestling for Christ (TM) either.Report

              • Burt Likko in reply to CJColucci says:

                As I understand it, that IS the law regarding to whom government entities may rent facilities. I don’t see anything objectionable about the principle of making facilities available to secular and religious patrons alike on equal terms that are rationally related to legitimate governmental objectives. For instance, requiring any prospective tenant who wants to rent that room to be able to prove that it has a reasonable amount of insurance might seem a financial burden to a smaller entity unable to afford such insurance, but that burden applies to both a small secular group as well as a small religious group.

                In your example, it’s entirely possible that the issue is not whether you’re Mud-Wrestling for Jesus or Mud-Wrestling for Fun and Profit; the issue is you’re going to be getting tons of mud all over our community center and we lack confidence you’ll be able to adequately clean it up afterwards or prevent people from getting hurt slipping on that mud and sticking us with the medical bills.Report

          • Burt Likko in reply to DensityDuck says:

            Seems to me you’re avoiding the challenge.Report

            • DensityDuck in reply to Burt Likko says:

              I’m avoiding diving into your no-true-scot game where this kind of vague handwaving towards the infinite is okay but that vague handwaving toward the infinite is Government Obligation To Take Part In A Religious Ceremony.Report

    • “In practice, the Pledge isn’t a survival question for secular Americans seeking to avoid a governmentally-imposed invocation of the supernatural;….”

      I personally see the pledge as a form of idolatry. I can understand pledging allegiance to the constitution, but a flag? No.

      While I am an agnostic, I’m not pro-idolatry.Report

      • I’m not going to dispute what idolatry means; instead, I’ll point out that it’s not for the government to tell a believer what is or is not the proper form of worship. That too would be an Establishment.Report

        • I agree, of course.

          I realize, by the way, that introducing “idolatry” is a backdoor way of introducing faith. What’s idolatry to me my not be idolatry to someone else. I do think that a person who opposes “idolatry” (however defined) should be wary of flag pledges. Sadly, in my experience, many anti-idolators who don’t belong to “worship the flag” religions insist on the obligation to worship the flag. (That’s a tangent.)Report