January 13, 2012

Unconstitutional Judiciary Orders Destruction of Prayer

Justin Katz

So U.S. District Court Judge Ronald R. Lagueux has decreed (PDF) that the 46-year-old, mildly Christian prayer banner at Cranston High School West be removed. Judging from his description of its installation, as an old paper banner practically painted into the wall, the ruling appears tantamount to a decree that the prayer be destroyed.

One could raise a parade of issues with Lagueux's legal argument. For example, among the cases in precedence that he cites as especially relevant is one in which the Supreme Court stated that a newly minted ordinance to place the Ten Commandments in every classroom of a district couldn't stand. The case in Cranston must, at the very least, be closer to the line; I'd argue that it pushes the line a bit in atheists' favor.

Another example arises in Legueux's explanation of why the student has standing to sue for the removal of the mural:

The plaintiff must have suffered 1) an injury in fact; 2) which is caused by the offending conduct; and 3) which is capable of being redressed by a favorable court decision.

It is obvious to suggest that, because all of the adverse reaction resulted not from the banner itself but from the effort to extinguish it, removing the banner will not eliminate the conduct, but arguably exacerbate it. Admittedly, Legueux doesn't rely on that portion of the three-part test, but rather, he simply assumes that standing exists. The cases that he cites in this portion of the ruling have mostly to do with the recitation of prayer. The most important question before him — whether an historically relevant display across which a student's eye may come from time to time causes the same effect and requires the same remedy as more direct and forceful impositions of religion addressed in the past — he simply skips over. Legueux fills in this blank with his heavy reliance on public reaction to the student's lawsuit but only thereby illustrates that it was not the presence of the banner that stands as the "offending conduct" creating "an injury in fact."

More important than the legal details, though, is that the ruling starkly raises a few key points in the ongoing debate. First, it makes clear how, as with other manifestations of leftist activism, treatment of atheism has a built in thumb on the scale.

On one hand, atheism is treated as if it were a religious belief in its own right so as to gain standing; the plaintiff, in this case, is "an avowed atheist." It undoubtedly is such, but the mindset with which the First Amendment is treated in the courts transforms atheism into the default religion of the state by affirming its central principle of negation. A Muslim might understandably "experience feelings of exclusion and ostracism," as Lagueux says of the young atheist's response to the prayer, by his school's endorsement of Christian concepts of God, but an atheist might respond thus to a school's broad suggestion that a deity exists and may be worth petitioning.

Just so, the Muslim might be made to feel included were his own vision of God included in school invocations, but only an atheist has beliefs that require that no others be invoked. One can observe this reality in municipalities that have striven for diversity in religious displays during the holiday season only to open the door to attacks on religion from atheist groups. Religious groups counterpoise each other by stating their own uplifting messages. God loves us thus. Life has meaning because.

"Freedom from religion" types don't put up posters extolling the virtues of humanity or honoring a life affirming statement from some key figure in the history of human reason, but rather by issuing arrogant declarations that they can spot the myths that less enlightened people believe to be true. Applied to the prayer banner in Cranston, this expression of the atheistic faith becomes the de facto message of the government. Lagueux admits that the values that the banner espouses are "commendable," but that "the reliance on God's intervention as the way to achieve those goals is not consistent with a secular purpose." That is only true if one begins with a framework for secularism that peremptorily excludes God and denies His ability to affect "worldly, as opposed to sacred" things, to take some language from the dictionary.

The "goal" of the prayer is to achieve such secular values as honesty, friendship, and a positive attitude. The view of secularism inserted into the law by judges like Lagueux is one in which the only means of achieving those ends that are acceptable in a public school are those adhering to the atheistic view that God's assistance is not necessary. Imagine some extreme circumstance that threatens the lives of everybody in the school building. By the judiciary's reasoning, the principal would be barred from leading the students in even the most ecumenical prayer, because it has transformed "separation" into a requirement that government entities cannot behave as if God exists or can have an effect in worldly matters.

If instilling kindness and helpfulness to students is a valid goal for a public institution, then it must be inconsistent with separation of church and state for the federal government to tell a local community that it cannot behave as if prayer is the only way — or even one of multiple ways — that students can acquire such traits.

Indeed, reading the ruling, one may wonder whether the judge's action, itself, can pass the Lemon test that Marc quoted yesterday:

According to the Lemon v. Kurtzman analysis, a governmental practice, or legislative act, must satisfy three tests in order to survive an Establishment Clause challenge. It must: "(1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) it must avoid excessive government entanglement with religion."

The judge's purpose may be the secular maintenance of the Establishment Clause, but his decree clearly inhibits a community from even a mild remembrance of its religious past while advancing the cause of atheism. Moreover, he and judges before him have indisputably mired the federal government in religious entanglement, not the least by insisting that no public entity, no matter how far removed from Congress, no matter how uniform the opinion of the local population actually served, can pretend that God exists.

As a matter of law, we have a Constitutional amendment in the Bill of Rights saying that "Congress [i.e., the federal government] shall make no law respecting an establishment of religion." Entirely through the plying of the judicial arts, this simple restriction has led to a federal judge telling a small community organization that it must remove, and thus destroy, an expression of mildly Christian religion that has hung inconspicuously for half a century. If that is not entanglement, I don't know what would be.

The plaintiff suffered no harm from the presence of the banner (even Legueux called the "coercion" imposed by it "subtle indeed"), but from her own initiative not to build support, locally, to remove it, but to have the federal government step in and assert her religious beliefs as the default in the secular realm, even to the extent of excluding historically relevant artifacts within the school. It is not too great an extrapolation to see in this case the underlying reason for our national politics' divisiveness. Local, democratic action is no longer the most effective means of addressing difference of opinion; influence over the federal government and especially the selection of judges is.

And judges are content — even to the point of celebrating the act's courageousness — to place the government in stark opposition to the people of, by, and for whom it ostensibly exists.

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An effective response would be to cover the prayer banner with another that says:
"...shall pass no law that prohibits the free exercise of religion".

Posted by: george seaver, cataumet, ma. at January 13, 2012 11:48 AM

This was another example of manipulation by Steven Brown,resident demon of RI.
This was no case of "establishment"of religion.
Lagueux probably didn't want to deal with being reversed by some liberals at the Circuit level.Lagueux has been about the most conservative Federal judge in RI.
RI without Steven Brown would be a better place.But alas,he's like a permanent toilet clog in our collective existence here.

Posted by: joe bernstein at January 13, 2012 12:02 PM

This decision is unsurprising.
Rather then whine about it we need to end the monopoly the failed, communistic, pedophile infested NEA/AFT schools have over poor, working and middle class people.
Implement a voucher system and let the parents choose their own school be it Catholic, communist, Wiccan, Nazi, Zoroastrian or anything else. Or home schooling.
Just make sure only parents with valid social security numbers get the vouchers and you will see Providence education costs cut in half.
That's a win-win baby.

Posted by: Tommy Cranston at January 13, 2012 1:18 PM

Justin well presented but like the most left leaning even you stopped reading "or prohibiting the free exercise thereof;"

Posted by: Warren at January 13, 2012 7:09 PM

Fine, tear down the banner.

But contrary to the sentiments that present-day commentators seek to project onto Roger Williams, I strongly doubt that he would have had any problem with the presence of such a banner in a public school or building in his day.

So for historical correctness, let's replace the banner with a copy of:

(1)Rhode Island's original parliamentary patent (it makes numerous references to God);

(2)Rhode Island's Royal Charter. While forbidding religious persecution, it encourages the conversion of the Narraganset Indians and directs that the colony be governed on "gospell principles;"

(3) Our state flag. The anchor and "Hope" derive from St. Paul's letter to the Hebrews.

(4) Just write on the wall the name of our capital city (hint: it's another name for "God.")

That said, don't blame Judge Lagueux. The U.S. Supreme Court's Establishment Clause jurisprudence is a disgrace; Judge Lagueux probably had no alternative but to reach the result that he did.

Posted by: brassband at January 13, 2012 10:04 PM

I’m not an atheist, but I agree with the judge’s decision. It is ridiculous to suggest that only atheists are served by the decision. May I remind you that the opposite of “Christian” is not “atheist”. There are hundreds of alternatives to Christianity.

Personally, if forced to declare, I’d call myself a henotheist, and the idea of attributing any attribute to god is absolutely offensive to me. So the phrase “our father” becomes offensive, since my religious belief is that god has no attributes (God is not, as one of my Jesuit instructors so well put it, “Some guy in the sky who looks like Karl Marx"), nor can god reside in a specific place. After all, what does omnipresent mean?

And what is “mildly Christian” supposed to mean? It makes about as much sense as “mildly pregnant”.

I don’t see how this decision “pushes the line a bit in atheists' favor”. If the banner has no religious significance why are so-called religious people upset by its removal? The rancor expressed puts the lie to the word "mild".

It is telling that the major defense for its retention is that it has “historical value”. Whose sense of history is offended? What historical event or principle does the banner represent?

Posted by: OldTimeLefty at January 13, 2012 10:52 PM

The decision is offensive not because it is anti-Christian or pro-Atheist but because it is lawless. There is no objectively plausible reading of the Constitution by which it might be construed to prohibit the Cranston banner. Unfortunately the courts long ago discarded the notion that they are bound by anything so antiquated and quaint as the Constitution.

The Constitution says, in relevant part, that "Congress shall make no law regarding an establishment of religion..." The banner at issue is not the result of any act of Congress. That alone should have disposed of the case.

Even if one accepts the idea that the Establishment Clause is applied to the states through the Fourteenth Amendment, the banner is by no means an establishment of religion, as that term has a very specific meaning in the context of the First Amendment, namely the maintenance of a state-supported church.

There was simply no cause for the courts to become involved in this case.

Posted by: David P at January 14, 2012 12:07 AM

OTL-we have no right not to be offended.
Public funds were used to produce "Piss Christ" and to exhibit the Madonna with dung on the canvas.
I guess that's ok,though,huh?
the courts allowed it-the double standard on this issue is painfully apparent.

Posted by: joe bernstein at January 14, 2012 3:35 AM

David P -

I would say that it's the Supreme Court's Establishment Clause jurisprudence that is "lawless;" I think Judge Lagueux was bound to follow it and had no real room to maneuver in the matter.

You're right that there's no "objectively plausible reading of the Constitution" that would prohibit the banner, but the U.S. Supreme Court long ago slipped away from moorings of Constitutional language!

Posted by: brassband at January 14, 2012 7:49 AM

Like many other Constitutional provisions, the Establishment Clause has been warped beyond all recognition through 200 years of judicial decisions, and the plain language no longer represents what it means in terms of substantive requirements or restrictions. For individual liberty purposes, I do happen to like the new reading in this case, but there is no question that this decision is not consistent with originalist principles. Having said that, I would prefer that atheists not litigate these types of cases except when they are being literally forced to do something against their will, and I would gladly trade away the "New" Establishment Clause to see the end of the "New" Commerce Clause or the "New" Equal Protection Clause.

Posted by: Dan at January 14, 2012 8:36 AM

Jesus said the most important commandments are to love God with all your heart and to love your neighbor as you would love yourself. The banner breaks no law. The banner does not promote any particular religious group or sect. The constitution guarantees free exercise. There is no attempt to establish Christianity as the state religion. These are the only rights the constitution protects. Mr Brown and this poor girl are misled. But threats and condemning remarks are not Christian acts. Read the end of the book, Good wins over evil! But how we behave while we are here determines whether we end up on the winning team. Perhaps this whole controversy is a test because God wants to see how we would treat others. Their heart might actually soften and be won over to God if they are shownr the example of Christ's Love. If not, then at least we have behaved in a way that glorifies Him.

Posted by: George at January 14, 2012 9:27 AM

brassband -

I didn't mean to imply that Lageux was out on his own in ignoring the plain meaning of the Constitution. His decision is quite possibly in accordance with the Supreme Court's Establishment Clause jurisprudence, to the extent that it can be discerned. For years the Supreme Court's Establishment cases seem to have been determined by whatever Sandra Day O'Connor had for breakfast that morning. Now that role seems to have been assumed by Anthony Kennedy.

My point was simply to say that a precise correlation between the language of the First Amendment and the application of the same by the courts "is such as to cause epistemological problems of sufficient magnitude as to lay upon the logical and semantic resources of the English language a far heavier burden than they can reasonably be expected to bear." (With apologies to Sir Humphrey Appleby)

In other words, Judge Lageux, in issuing his decision, can claim he was "just following orders." But that makes his opinion no less lawless.

Posted by: David P at January 14, 2012 9:08 PM

Justin,it's the last part of the first amendment that is being violated.

That is the free exercise of religion cannot be stopped. Yet that is okay according to this judge.

Too bad our public school system did not teach this young lady the truth.

Posted by: helen at January 14, 2012 11:56 PM

Hey,you know what? I'm kinda persnickety and sensitive. I can get offended real easy and I often do but don't take any action.

Maybe it's time to stand up and state my case. I've only been studying our rights and the Constitution for well over thirty years.

If this teenaged atheist can abrogate with the sanction of the court our rights,there must be some recourse.

Posted by: helen at January 15, 2012 12:07 AM

It seems that the idea expressed in the first amendment,which is the supreme law of the land,meaning it supercedes all other laws everywhere in the country,this first amendment says that the government cannot establish a religion,such as the Church of England,but neither can the government stop anyone,anywhere in this this country from the free exercise of their religion.

Look at the double standard. Congress prays,but this wasn't allowed in a public school.

How many times do we have to say this to get the idea across? This poorly educated little high school girl never learned it and the judge agreed to violate the first amendment.

Posted by: helen at January 15, 2012 12:27 AM
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