October 2008 Archives

Barry, as you know, the U.S. Court of Appeals for the Eleventh Circuit issued an important ruling earlier this week on the constitutionality of prayer before legislative bodies.

 

In Cobb County, Georgia, a few local taxpayers challenged the County Commission's practice of inviting community clergy members to offer prayers before Commission meetings on a rotating basis. "The clergy have represented a variety of faiths, including Christianity, Islam, Unitarian Universalism, and Judaism, and their diverse prayers have, at times, included expressions of their religious faiths."

 

The plaintiffs claimed that allowing the clergy to end their prayers with reference to a specific deity, e.g., "Jesus," "Allah," or "God of Abraham, Isaac and Jacob," violated the Establishment Clause of the First Amendment. They also objected to the fact that the majority of speakers are Christian because the volunteer clergy group "reflects the composition of the religious institutions in Cobb County."

 

The Court of Appeals disagreed. In an opinion by Judge William H. Pryor, the court explained that the Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783 (1983), "makes clear that '[t]he content of the prayer is not of concern to judges where . . . there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.'" Echoing Marsh, the court stated that it is not the role of judges "'to embark on a sensitive evaluation or to parse the content of a particular prayer.'" In other words, "[w]hether invocations of 'Lord of Lords' or 'the God of Abraham, Issac, and Mohammed' are 'sectarian' is best left to theologians, not courts of law.'"

 

The Court of Appeals correctly noted that the Supreme Court's decision in Marsh did not impose a requirement that all prayers offered to open legislative meetings must be "nonsectarian" or otherwise avoid any words that may offend some listeners. In this regard, the recent Eleventh Circuit decision parted ways with some other lower court decisions that had imposed a ban on any "sectarian" references during legislative prayers.

 

The Eleventh Circuit's decision is consistent with Marsh v. Chambers in which the Supreme Court upheld the Nebraska legislature's practice of opening each legislative day with a prayer offered by a chaplain paid by the State. The Marsh Court noted that "[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom." The Court acknowledged the fact that "the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain."

 

In addition, the Marsh Court explained that "the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress." The Court concluded that, "[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.  To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, 'we are a religious people whose institutions presuppose a Supreme Being.'"

 

Barry, I believe that the Supreme Court would agree with the Eleventh Circuit's interpretation of Marsh - do you?

 

 

Jay, I know you would like to see the tax code provision barring endorsement of candidates by non-profits repealed.  We have a big difference of opinion about that.

             However, I do not see why you believe that under the current law the "line between issue advocacy and electioneering is not clear cut".  If a minister really wants to talk about any moral issue he or she just says, for example: "I oppose the federal income tax because it is just a socialistic redistribution of wealth" and then adds: "so do your homework and find out  what candidates for public office want repeal and vote for them", that's legal.  If the pastor says the same thing but closes "and that African American Senator who is running for President seems to like income redistribution" he has an IRS problem. It is clear that the pastor wants you not to vote for Barack Obama.  That's what Bishop Serratelli's pastoral letter was all about.  What else could he possibly have meant?

             Any "chill" on just speaking out against abortion is clearly self-imposed.  If the minister is not trying to be cute or coy, he just tells people that he thinks God doesn't like abortion and then urges parishioners to vote accordingly.  He adds no names, no pictures, no coded messages. 

             Of course, in New Mexico, "but for" the church deciding to put up that anti-abortion display, how would the passerby you envision have any reason to think about the issue at that time.  Of course, it was the church that tried to send its "moral" as well as "vote McCain" message to the public.

               As to Rick Warren, he is entitled under the tax law, to do just what he did and proclaim his support for Proposition 8.  You are right that many other religious leaders are speaking out strongly in opposition.  I just disagree with Warren on the merits (or in this case lack of merits).  I don't know any liberals who claim the Bible literally supports same sex marriage.  What they do say is that the Bible is not to be the basis for deciding what civil rights exist in Twenty-First century America.  That's called the separation of church and state.  I like it. 

Barry, the examples you cited show precisely why the IRS gag rule should be repealed. When the IRS investigates pro-life churches who speak out in defense of the unborn during the election season, it has a chilling effect on other churches. The line between issue advocacy and electioneering is not clear cut, and the uncertainty often leads to self-censorship.

 

For example, the response by the Paterson, N.J. Diocese that you linked to states:

 

"The characterization that Bishop Serratelli's column intervened in the election process is inaccurate. His October 9 column was not directed to the upcoming presidential election, but was rather totally focused on the Freedom of Choice Act and the harm it would do to the nation if it were to be signed into law. It's absolutely, positively misleading to say that the bishop urged Catholics not to vote for Sen. Obama. All the bishop did was to point out that in a speech before the Planned Parenthood Action Fund last year, Sen. Obama made the promise that the first thing he would do as President would be to sign the Freedom of Choice Act."

 

It sounds like the Bishop was simply following a moral duty to speak out against the Freedom of Choice Act, an unprecedented pro-abortion bill that leading Democrats have vowed to pursue if a Democrat becomes President. Churches that hear about complaints being filed against the Paterson, N.J. Diocese may be more hesitant to address the evil of abortion from their pulpits.

 

In the New Mexico example you cited, the message conveyed by the similing baby photo and the aborted fetus photo above candidate names is ambiguous at best. The church was not telling people which candidates to vote for, and people who are strongly pro-life or pro-abortion are not going to change their mind after viewing the photos. If someone sees the photos and decides to vote for pro-life candidates as a result, it is because of their conscience, not the church.

 

Congress needs to repeal the IRS gag rule to restore complete freedom of speech to pastors. Pastors that do not wish to discuss moral or policy issues are not required to do so, but those that want to speak out should be free to do so without a cloud of possible IRS investigation hanging over them.

 

On the issue of preserving traditional marriage in California, I'm disappointed that you've resorted to labeling Pastor Rick Warren and the millions of Americans who support traditional marriage as "anti-gay," "raising high the homophobia rooftop," and holding a "bitter fear of others." Not to get into theology, but since you mentioned what the Bible says about marriage, it certainly says nothing that would support anything other than marriage as between one man and one woman.

 

The reality is that religious leaders--both conservative and liberal--are speaking out on Proposition 8. Both sides consider this an important issue and there's nothing wrong with a vibrant discussion that involves differing viewpoints. For every Rick Warren, there's a liberal religious leader (or two) in California who claims that the Bible supports same sex "marriage." The polls remain close, and "[l]eaders on both sides say they sense that the election will be close and that Proposition 8 could well pass." 

 

At least California voters have a chance to decide this issue for themselves once and for all rather than having judges decide for them.

For the past two years I have been telling my liberal friends, Jay, that the Religious Right is not dead; it is not even sleeping.  I've also been alerting them to the fact that the so-called "new evangelicals" may have a legitimate interest in poverty and environmental degradation, but that they often are anti-reproductive choice, anti-gay, and against real separation of church and state.  I'm on the email list of many "conservative" groups (to see how the other half thinks), and I got an interesting missive today from the Family Research Council.

Confirming my point, we now know that Pastor Rick Warren (of the celebrated Saddleback Church Forum about which we began this blog) is raising high the homophobia rooftop in supporting Proposition 8 out in California to overturn that state's high court ruling that gay and lesbian couples must be allowed to have the rights and responsibilities of civil marriage.

According to Warren "if you believe what the Bible says about marriage, you have to support Proposition 8".  I don't recall Pastor Rick urging passage of any constitutional amendments prohibiting divorce, although that topic (unlike "gay marriage") is actually mentioned in the Bible.

But Warren goes on. He claims: "this isn't even just a Christian issue, it is a humanitarian and human issue, that God created marriage for the purpose of family, love and procreation".  In his own illogically driven prose, it turns out that the only reason for "humanitarians" to support it is because Rick Warren's version of God wants them to.  A bit of circular reasoning there, I'd say.  And this is Warren's God, not the God of many of us Christians.  We read the Bible with an emphasis on compassion, not attuned to the bitter fear of others that is apparently encrusted on to Warren's soul.

 

As noted in my last post, if that school assignment was to draw anything you want (and that's the end of the story), then you were right to intervene.  I would have done the same if her mother had called me.

Now, we have been in longtime disagreement about politicking from the pulpit-- I like the 1954 provision of the IRS Code that allows for discussion of political issues but strictly prohibits actions that constitute endorsement of or opposition to any candidate for public office.  Recently, about 31 pastors violated that provision with the encouragement of a group called the Alliance Defense Fund, and they hope to create a test case for what they erroneously call "pulpit freedom."

Two religious bodies have now gone way beyond the idea of speaking out on a Saturday or Sunday morning in praise of somebody's election. 

Let's start in New Jersey.

The Roman Catholic Archdiocese of Paterson, N.J., has published a letter on its website and in the diocesan newspaper by its bishop Arthur J. Serratelli.  In it, Serratelli "cleverly" never mentions the name Barack Obama but suggests that "the present democratic candidate" (who could that be?) is comparable to the biblical monarch Herod Antipas, the fellow who ordered the beheading of John the Baptist.  Serratelli then goes on a screed about how in this election we either "choose to respect life...or we sanction the loss of our most basic freedom".  The Archdiocese denies it's an intervention against Obama. 

Jay, I'd like to think you would agree that it is obviously partisan politicking even if you think the church should be allowed to do it.

And, then, let's move over to New Mexico. There, the Rock Christian Fellowship in Espanola posted two large photographs on its building.  One showed a smiling baby; the other the remains of what appears to be an aborted fetus.  Under the healthy baby are the name of three Republican office seekers, including John McCain; under the fetus, the names are of three Democrats including Barack Obama.  Below the whole display: "YOU WILL DECIDE."

Leaving aside seriously sight-impaired individuals who cannot see this presentation, can anyone believe this is not a blatant anti-choice message combined with a clear and unequivocal "vote Republican" add-on.  Without any reference to the election, a church can put up pretty much anything; with the candidate endorsement it is a clear violation of the law.  Pastor Michael Naranjo told the local paper : "I'd rather lose my 501 c (3) than lose my soul."

If the IRS does its job, he should get his wish.

Barry, I never said that the use of a pro-Obama textbook violates anyone's First Amendment rights, but it does illustrate the importance of parents reviewing their child's textbooks, getting involved in electing school board members, and being active at school...

Jay, you are mixing apples and oranges.  Let's start with the story of the pro-Obama textbook.  Although I must admit I generally treat anything reported in WorldNetDaily like I used to treat the stories of Bat Boy in the now...

These are very interesting times.  Especially when it comes to what's taking place in our public schools.  Barry, I don't know if you've seen the news reports about the controversy in Wisconsin where school officials approved the use of a textbook...

The third Presidential debate did provide another example of the candidates' views on abortion, but both candidates were unconvincing in their responses to Bob Schieffer's questions on the matter. On whether a potential nominee's views on Roe would be a...

Barry, to address your critique of a McCain supporter's prayer: people of all faiths are entitled to pray as they see fit. There is nothing wrong with wanting our government leaders, who make decisions that have a profound impact on...

                Yes, Jay, there are so many issues that should be discussed in the third debate.  I am not clairvoyant (although given the stock market I am thinking of putting up a psychic hotline and trying to get $2.99 per...

The fact that tonight represents the final debate between Senators McCain and Obama at Hofstra University on Long Island also marks the final opportunity for these two candidates to address - in a debate format - key issues that have...

I'm glad that Michelle Obama wasn't too offended, but I still think she had every right to be after Senator McCain's "that one" comment.Of course, the candidates should address both constitutional law and future Supreme Court nominees at the final...

While Senator McCain's comment that you referred to wasn't the best phrase he could have selected, Michelle Obama has said she was not offended by it, and it should not divert attention away from discussion of the real issues.  ...

I'm not a big fan of the Drudge Report, Jay, but Drudge and company nailed it last night as it posted its response to the second Presidential debate in big bold letters: BORING.  Let's face it though, plenty of...

Barry, I am sure you are as disappointed as I am - not one word mentioned in the 90-minute debate about the importance of judicial nominations or the Supreme Court of the United States.  With the election less than a...

Barry, I agree that constitutional issues and the importance of Supreme Court nominations should get more coverage during this Presidential campaign. I would like to see this issue discussed at the debate tonight even if Tom Brokaw does not bring...

Jay, I'm sure you noticed that the major media has noticed that there is a Supreme Court.  This may have something to do with the fact that this, the first Monday in October, is the opening day of the 2008-2009...

Barry, your discussion of the United States' record in religious asylum cases brought to mind another case we have worked on. We filed an amici curiae brief with a U.S. district court in Pennsylvania along with our international affiliate in...

OK, Jay, for starters, I did like this Bill Maher film more than I liked Mel Gibson's "The Passion of the Christ". I saw it last night at a pre-opening screening sponsored by the Washington Area Secular Humanists and the...

The asylum decision that you just achieved is admirable.  Willfully sending people back to their country of origin if there is credible evidence that persecution will occur there is an affront to international legal principles and virtually any standard of...

We recently received word of a landmark victory for religious freedom in a case we're handling in the United Kingdom. We represent a Syrian married couple who are both former Muslims who became evangelical Christians. The husband was training to...

I'm glad that you appear to agree with me that there is no obvious basis for believing the Supreme Court would surely rule the current "no partisan politicking" rule unconstitutional.  Of course, I don't want to see a "fix" of...