From the Christian Science Monitor: Prayer and politics in Congress - How prayer meetings on Capitol Hill inspire fellowship and foster bipartisan lawmaking, though some argue it is too much religion under the rotunda.

Does this violate the establishment clause?

Or does it help create unity?

- Click here for the article.

Prayer has always been a presence on Capitol Hill. In the 19th century, religious services were actually held in the House chamber because it was the biggest space in a town still under construction and lacking public buildings.

“The House was used for church services, but it wasn’t a church,” says Donald Ritchie, former Senate historian. “It was used for funerals, but it wasn’t a funeral parlor. It was a space that was available.”

Those practices ended in the 1840s, when enough churches had been built to accommodate lawmakers and their families. What still survives from the First Congress of 1789 to this day – and which many secularists object to – are two chaplains, one for the House and one for the Senate, underwritten by US taxpayers. The chaplains, or a guest, offer a prayer at the opening of each day that Congress is in session, and they minister to the members, their staffs, and their families.

When he was the Senate historian, Mr. Ritchie says he often had to answer queries from outraged citizens and visitors who viewed the chaplaincy and opening prayers as a violation of the separation of church and state. But Article 1 of the Constitution allows the chambers to “chuse” their officers, and the chaplains have always been officers, the historian says. As the current Senate chaplain, Barry Black, notes on his web page, the chamber honors the separation of church and state, “but not the separation of God and State.”

The Supreme Court agrees. In 1983, it held that a chaplaincy and opening prayers in legislatures do not violate the Constitution (Marsh v. Chambers). In 2014, it upheld opening prayers at municipal meetings, so long as the practice is not discriminatory. That ruling could soon get a test. Dan Barker, an atheist who founded the Freedom From Religion Foundation, is suing the House chaplain and speaker for barring him from offering a secular invocation in Congress. The group also objects to the prayer breakfasts, which are organized by the lawmakers.

From the Texas Tribune: Cheerleader Case Can Proceed, State Supreme Court Rules

This smells like a potential US Supreme Court case.

It concerns whether the breakaway banners cheerleaders in Kountze High School created for football players to crash though violated the establishment clause of the U.S. Constitution.They were in the habit of painting biblical verses on them. Since it is a public high school, such actions can be seen to be a governmental endorse of a particular religious views over others. To avoid lawsuits, the ISD ruled that they could not paint religious messages on the banners, but the cheerleaders sued.

The ISD countered that they could not do so, but the decision by the Texas Supreme Court was simply that a lawsuit filed by the cheerleaders could go forward. There has yet to be a substantive ruling on the merits of the case - that is the actual constitutional question posed by the dispute. Now the process is in place to figure that out.

- Click here for the article.

The East Texas students have been fighting for the ability to cite Bible verses as part of their cheerleading routines since 2012, when the Kountze Independent School District told the squad they could not paint Christian messages on the banners football players ran through before their games.

The district instituted the ban after the Freedom From Religion Foundation, which advocates for the separation of church and state, threatened to sue. Foundation members argued that because the Bible-quoting signs were held by cheerleaders wearing official school uniforms, and at official school events, they were tantamount to school-sponsored religious activities.

The ban didn’t put an end to the district’s legal woes — because the cheerleaders’ parents promptly filed a lawsuit of their own, claiming the ban violated their children’s right to free speech. The squad members came up with the banner ideas on their own, and bought the supplies with their own money, making it clear they were acting as individuals, the cheerleaders’ parents said.

The case has been making its way through the legal system ever since. In 2013, the Kountze district independently overturned its “no Bible messages” ban, but families of several cheerleaders kept pursuing the lawsuit anyway. Eventually, the 9th Texas Court of Appeals threw the case out, ruling that because the policy was no longer in effect, the lawsuit was moot.

On Friday, the Texas Supreme Court overruled the lower court's decision, writing that the lawsuit should be allowed to continue because the ban could “reasonably be expected” to be reinstated.

“The District no longer prohibits the cheerleaders from displaying religious signs or messages on banners at school-sponsored events,” Justice John Devine wrote in the opinion. “But that change hardly makes ‘absolutely clear’ that the District will not reverse itself after this litigation is concluded.”

For the actual decision by the court click here.

For 2306 - 1/24/16

Some odds and ends for state and local government

Though the Texas Legislature is not meeting right now, standing committees are. Here is a report of one meeting about "sanctuary cities" one of the items that might appear on the agenda of the 85th session nest year. Click here for the story.

The El Paso Times editorializes on the need to address the unique issues of urban schools - especially those with a high number of poor students. An interest group called the Urban Council of Superintendents has reformed in order to push an agenda enhancing the quality of urban schools in the next session of the legislature. Click here for the story.

Two public school advocates criticize Texas' approach to evaluating school quality. The difference between good and bad schools they argue is the degree of poverty the school student's live in. Click here for the story.

The executive director of the Texas Municipal League argues that declined in state support for infrastructure projects - notable transportation projects - places additional burdens on cities. Click here for the story.

The Texas Attorney General has decide that online fantasy sports counts as gambling and is illegal in the state. The industry argues that it is a game of skill, and says its not going anywhere. A variety of issue regarding gambling are perennially argued before the legislature. Click here for the story.

Some police departments are putting signs on their cars stating "In God We Trust" which may or may not raise establishment clause questions. It'll be interesting to see if a lawsuit comes from it, and if the court decides the plaintiff has standing to sue. Click here for the story.

From the Texas Tribune: Lawmakers Jump into Tussle Over God's Trust

Reminds me a bit of the Kim Davis controversy. It goes beyond the religious views of an individual by involving a governing entity. This makes it more of an establishment clause issue than a free exercise issue. But let;s think it through in class.

- Click here for the article.

A furor involving a small-town Texas police department and national secular organization has reached the state attorney general's office, and may well wind up in court after that.

At issue: does slapping "In God We Trust" stickers on police patrol cars violate the U.S. constitution?

After fielding a complaint from a citizen of Childress, a Panhandle town of about 6,000, the Freedom From Religion Foundation sent the town’s police department a letter last month asking it to stop using the motto.

The Wisconsin-based foundation, a national church-state watchdog group that claims to be the country's largest association of atheists and agnostics, argued placing the slogan on an official police vehicle breaches the wall separating church and state.

In a widely shared response, Childress Police Chief Adrian Garcia wrote: “After carefully reading your letter, I must deny your request in the removal of our nation’s motto from our patrol units and ask that you and the Freedom From Religion Foundation go fly a kite.”

That response, which Garcia posted on his department’s Facebook page had been liked more than 170,000 times, shared by more than 145,000 accounts and drawn about 20,000 comments as of Monday.

Monday, the two state legislators representing Childress — state Sen. Charles Perry, R-Lubbock, and state Rep. Drew Springer, R-Muenster — asked Attorney General Ken Paxtonto weigh in on the question.

Adopted in the mid 1950s as the nation’s motto, “In God We Trust” is an exclusionary, “Johnny-come-lately” that is unconstitutional and “turns believers into insiders and non-believers into outsiders,” Annie Laurie Gaylor, co-president of Freedom From Religion Foundation, told The Texas Tribune.

Related: Ken Paxton asked to support ‘In God We Trust’ on police cars.

Freedom of religion or tyranny of the majority?

Democracy ain't easy. The right of the majority to establish the policies it seems best can limit the rights of the minority. This is a major theme of Federalist 10, as well as the Bill of Rights.

This Atlantic article on the promotion of Christianity in Louisiana public schools is just one example - a topical one at that since we revisit these issues continually in Texas as well. Here's the heart of the dispute:

A federal lawsuit filed last week in Louisiana contains some of the most startling allegations you will ever see against public school officials accused of unlawfully turning their school into a bastion of Christian belief. In western Louisiana's Sabine Parish, one family alleges, teachers preach Creationism and mock the theory of evolution, routinely lead their students in Christian prayer, give extra credit for Christian responses to assignments, and actively question or deride the religious beliefs of non-Christian students and parents.

Presumably all this is done with the consent of the majority, but over the wishes of the minority - which of course has little influence in a majoritarian democracy. A public school is a governing institution and even though these operate on the local level, the 14th Amendment makes First Amendment restrictions created to limit the national governmental power applicable to them as well. This is meant to limit what majorioties can impose upon minorities, but it butts up against a tension that exists in the opening clause of the First Amendment.

While a government cannot establish an official church, neither can it restrict free exercise of religion. The line between the two can get muddled though - and this is where problems start. What's happening in the Louisiana schools is an expression of religious belief, but the fact that it is done in a governing institution - a single purpose government - with the authority of the board and administration makes it seem like the religious expression becomes the official "established" one in the institution.

Those who do not adhere to it are seemingly treated in a secondary manner. Which leads to the constitutional conflict.

Two presidential takes on Thanksgving

The Volokh Conspiracy highlights the different approaches Washington and Jefferson took to Thanksgiving.

Washington had little problem using his authority to set aside a day of thanksgiving with explicit religious content, but Jefferson saw it as beyond his authority as president to do so.

Marsh v. Chambers,

The case discussed below will likely be decided based on the precedence established in Marsh v. Chambers - which concerned whether funding for chaplains that open legislative sessions with a prayer violated the establishment clause.

The court argued that it did not. From wikipedia:

. . . the position of chaplain has been closely tied to the work of state and federal legislatures. "This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged."

And from Oyez Project:

In a 6-to-3 decision, the Court upheld the chaplaincy practice. In his opinion for the Court, Chief Justice Warren Burger abandoned the three-part test of Lemon v. Kurtzman, which had been the touchstone for cases involving the Establishment Clause. In its place, Burger rested the Court's opinion on historical custom. Prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress that framed the Bill of Rights. As a consequence, the chaplaincy practice had become "part of the fabric of our society." In such circumstances, an invocation for Divine guidance is not an establishment of religion. "It is," wrote Burger, "simply a tolerable acknowledgment of beliefs widely held among the people of this country."

From the dissent:

The Court makes no pretense of subjecting Nebraska's practice of legislative prayer to any of the formal "tests" that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer. For my purposes, however, I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.

The majority in other words was making an exception for legislative prayer in a manner that it did not for other similar cases.

When does a public prayer become an endorsement of a state religion?

The Supreme Court will try to make that determination in the Town of Greece v. Galloway. It heard oral arguments on the case this week.

The Issue: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

The argument in plain english:

Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents. Today, in Town of Greece v. Galloway, the Court will hear oral arguments about whether the town’s prayers are constitutional, but its decision could have a wider impact on the law governing the intersection of church and state. Let’s talk about the case in Plain English. For the first eight years after the town started the prayers, all of the people who delivered them were Christian.

The case before the Court today was filed in 2007 by Susan Galloway, a town resident who is Jewish, and Linda Stephens, who is an atheist. They said that the repeated use of Christian prayers made them uncomfortable; in 2008, there were four non-Christian prayers.

. . . A lower court held that the town’s prayer practice violated the Constitution because, taken as a whole, it suggested that the government was endorsing Christianity. That court emphasized that most of the prayers were “uniquely Christian” – referring, for example, to “Jesus,” “Your Son,” or “the Holy Spirit.” And it wasn’t enough for the lower court that clergy from other religions had sometimes offered the prayer; it reasoned that the town had almost always only invited clergy from within the town itself, without making any real effort to let other religions know that they could participate, and it hadn’t reached out to recruit members of other faiths.

. . . Galloway and Stephens argue that the prayers are unconstitutional for two reasons. First, they effectively coerce the town’s residents to participate in the prayers. If you want to participate in local government – for example, when you are looking for a zoning change or trying to get a business permit – you will attend the town council meeting and feel obligated to join in the prayer. This is different from the prayers that the Court approved in Marsh, they reason, because there wasn’t any sign of coercion in that case: Nebraska citizens were just there to watch the proceedings, and legislators “were free to come and go with little comment.” Second, the prayers are “acceptable only to Christians.”

One suggestion was to craft a prayer acceptable to all religions, in oral arguments the court considered this argument, but the National Journal has doubts that is possible:

As part of the oral argument Wednesday, the justices wondered whether there could possibly be one prayer nondenominational enough to be cool with Christians, and, let's say, worshippers of Zeus. They were picking apart the argument of Douglas Laycock, a professor of law and religion at the University of Virginia, who said that prayers could be allowed if they were not sectarian.

"Well, if that is your argument, then you are really saying you can never have prayer at a town meeting," Justice Samuel Alito said. Laycock then tried to defend his position.

The exchange that follows highlights the central problem of the issue: How do you both allow public prayer and be all inclusive? The answer veers into the absurd, dissecting prayers into their least offensive and vaguest components, approving the ones that pass a sniff test, but still implicitly invoke God and therefore will offend someone, somewhere. Justice Antonin Scalia, the staunch Catholic, jumped in wondering whether such a prayer could make devil worshippers happy.

For the record, Lucien Greaves, the communications director of the Satanic Temple, says the answer is no.

"If the question is one of whether or not there can be one public prayer generalized enough to be all-inclusive to every religion, the answer is obviously no," he wrote me via email.

"The discussion regarding some type of all-inclusive public prayer naively assumes one type of religious construct (that of servitude and supernaturalism) while seemingly disregarding not only other religious conceptions, but the presence of those who don't wish to associate themselves with any type of religion whatsoever."

From the Huffington Post: North Carolina May Declare Official State Religion Under New Bill

Never mind that Establishment Clause, or the 14th Amendment.

Greg Abbott intervenes in Kountze cheerleader case

We discussed this case in class so we saw it coming. From the Texas Tribune:

The state of Texas, known for its frequent legal scuffles with the federal government, has picked yet another high-profile courtroom fight.

This time, though, the case centers on one of the state's own school districts, Kountze ISD, which last month ordered high school cheerleaders to stop holding banners bearing Bible verses during football games.

Attorney General Greg Abbott announced Wednesday at a press conference with Gov. Rick Perry that the state had filed a motion to intervene in a suit challenging the order, which the district imposed after it received a letter from the Wisconsin-based Freedom From Religion Foundation calling the display of the verses unconstitutional.

From Wonkblog: Missouri court: Yes, the feds can mandate contraceptive coverage

This dispute will very likely wind up in the Supreme Court:

A number of lawsuits, challenging the health law’s required coverage of contraceptives, are winding their way up through the federal court system. A few have seen preliminary rulings on ripeness (whether the case can even be brought yet) and standing (whether the people bringing the suit have actually suffered damage).
A court in Missouri today became the first to rule on a lawsuit’s merits: Whether, as the case argues, the contraceptives mandate is a violation of the First Amendment freedom to practice religion. In a ruling written by George Bush-appointee Carol Jackson, the Eastern District of Missouri court found the health law provision to be constitutional.

You can read the full 29-page opinion here. The main thrust of the opinion though, is this: The requirement that employers cover contraceptives does not represent a substantial burden on employers’ ability to practice religion.

Looks like we will have opportunities to dig into the meaning and extent of religious freedom.

Do Bible verses on football "run-through" signs violated the establishment clause?

Looks like we will find out sometime in the near future.

This seems to be an interesting look at how schools struggle with student led attempts to promote a religious point of view in a public setting where there is a requirement that the institution itself be neutral.

Cheerleaders at Kountze High School have been using Bible quotes on signs at football games, but have been prevented from doing so by the KISD's superintendent on the legal advice of the Texas Association of School Boards. Past court decisions have maintained that school sponsored groups can be taken as sending a message that the public school - meaning the state - is endorsing a specific religious point of view at the expense of others.

Some of the cheerleader's parents filed suits and obtained a restraining order from a judge. The order mandates "the Kountze Independent School District to "cease and desist" from preventing high school cheerleaders from displaying the large paper banners, through which football players ran at the start of games." The Texas Attorney General argues that the signs do not violate First Amendment rights and has offered to help the cheerleaders.

A hearing is scheduled October 4th, so we'll keep up with this story. It could be with us a while.

Related links, stories, interested groups:
- Kountze High School Cheerleaders Fight to Use Bible Verses as Signs at Football Games.
- Judge Allows Kountze High School Cheerleaders to Use Bible Banners.
- Texas AG offers to help school district in battle over religious banners.
- First Amendment Center
- American United for the Separation of Church and State
- Liberty Institute
- Freedom from Religion Foundation.
- Santa Fe Independent School District v. Doe
- Texas Association of School Boards.

Torcaso v. Watkins

Some 2301 students have noted in last week's written assignment that the Texas Bill of Rights contains a clause that says: No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.
This makes it clear that atheists cannot hold public office in the state, and is very different than language in the US Constitution that preculdes such limitations.

This clause was negated however in the 1961 court case Torcaso v. Watkins, which argued that it violated the establishment clause which, they argued, protects people from being compeled to profess a belief in a church or religion. It was also held that the requirement violated the Constitution's mandate that religious tests not be used as a qualification to hold office.

This applied not only to Texas, but to other state constitutions that had similar clauses that allowed for discrimination against atheists.

Oklahoma's ban on Sharia Law violate the establishment clause

So says an appellate court:

A federal appeals court today blocked a measure that would’ve made Oklahoma the first state in the nation to ban the Sharia law in its court system.

The court ruled in favor of Muneer Awad, executive director of the Council on American-Islamic Relations (CAIR) in Oklahoma, who filed a lawsuit against the Oklahoma election board on the grounds that the voter-approved constitutional amendment violated the Establishment Clause of the Constitution forbidding the government from favoring one religion over another.The Oklahoma law passed with 70 percent of the vote, but constitutional ruling do not take this into consideration. Protecting the liberty of the individual generally involves restricting the preferences of the majority.

Here's more from the Atlantic, the decision was unanimous, and apparently not a big surprise. And two from the Volokh Conspiracy here and here.

Stanley Fish Analyses Kagan's First Dissent

Read it here.

It regards her dissent in a recent case concerning the establishment clause. In Fish's opinion, the conservative majority has over the years allowed tax funds to be "laundered" and used to fund religious schools in violation of the clause.

Supreme Court Allows Tax Credit for Religious Tuition

From the NYT, for my 2302s:

The Supreme Court on Monday let stand an Arizona program that aids religious schools, saying in a 5-to-4 decision that the plaintiffs had no standing to challenge it.

The program itself is novel and complicated, and allowing it to go forward may be of no particular moment. But by closing the courthouse door to some kinds of suits that claim violations of the First Amendment’s ban on government establishment of religion, the court’s ruling in the case may be quite consequential.

Justice Elena Kagan, in her first dissent, said the majority had laid waste to the doctrine of “taxpayer standing,” which allows suits from people who object to having tax money spent on religious matters. “The court’s opinion,” Justice Kagan wrote, “offers a road map — more truly, just a one-step instruction — to any government that wishes to insulate its financing of religious activity from legal challenge.”

The decision divided the court along the usual ideological lines, with the three other more liberal members — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — joining the dissent.

- Arizona Christian School Tuition Organization v. Winn.

Creationism v Evolution

More constitutional fallout from the Delaware debate: Can states compel school districts to teach creationism alongside evolution? Recent Supreme Court decisions have found this to violate the establishment clause.

A Test Case?

So in class today we had some fun tossing around a kooky little idea. Let's say you consider environmentalism to be akin to religious belief -- the whole "mother earth" Wicca type thing. If that's true (if) then isn't the Environmental Protection Agency, an executive agency designed to promote environmentalism (a religious belief) a form of state religion? If so (again, if) than doesn't the EPA violate the establishment clause?

I'll offer extra credit points to whoever want to put a brief together making that argument. We could have a press conference and announce a lawsuit. I bet Glenn Beck will take us seriously even if we dont.

Religious Monuments on Government Property OK

The Supreme Court ruled -- in Salazar, et al., v. Buono -- that a Christian cross erected on government ground did not violate the establishment clause. The decision was 5-4 and contentious.

- Salazar v. Buono - ScotusWiki
- Salazar v. Buono - Wikipedia, the free encyclopedia

Two Cases Narrowing Standing

We discussed standing in 2302 today and how the recent Supreme Court has used it to make it easier to not have to make decisions in certain cases. Here are two examples I ran across today:

- Hein v the Freedom From Religion Foundation: A case which challenged President Bush's Faith Based Initiatives on the grounds that they violated the Establishment Clause. The court rules that since the program was an executive action funded by general revenues, the organization which brought the suit lacked standing.

- Salazar v. Buono: An ongoing case, again involving the Establishment Clause, regarding the constitutionality of a cross erected on government land -- which was quickly sold to a private party -- and the refusal to allow a Buddhist group to build a similar monument. ScotusBlog suggests that this case may also be decided by denying the plaintiff standing.