Jay Sekulow: 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?

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.

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 board meetings.

Public school boards have broad authority to set their curriculum, but they are ultimately answerable to the parents and other citizens that vote for them. Parents who don't like what is being taught at their child's public school can express their dissatisfaction through the electoral process and by voicing their concerns at school board meetings.

The pro-Obama textbook situation highlights the importance of maintaining state and local control over public education to ensure that educators are responsive to the values of the local community. For example, the Supreme Court has stated that "the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like," Stone v. Graham, 449 U.S. 39, 42 (1980), and state and local school boards should have the discretion to offer such courses if they so desire.

As for student assignments, your reference to examples where a student fails to follow directions is a red herring--a student does not have the right to write a poem if the assignment is to write a short story. However, we are frequently contacted in situations where students are allowed to draw a picture of their choice, select a book or song of their choice, etc. where the only objection to the student's selection is that it is religious.

In the Kansas case, the art assignment was to draw a picture of the student's choice. No restrictions or specific requirements were provided. After the student chose to draw a cross, the teacher rejected the picture solely because it was religious. The teacher probably believed incorrectly that the "separation of church and state" required him to censor the student's expression.

Barry, you would agree that the student had the right to incorporate a religious viewpoint in response to this assignment, right?

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 that highlights and promotes the accomplishments of Democratic presidential hopeful Barack Obama.  The problem, as one parent put it, "No John McCain, no Hillary Clinton, no George Bush - Just Barack Obama."

The textbook cites Sen. Obama's 'change' theme as an example of good literature and talks about his 'life of service."  That's triggered an outcry from some - including the moderator of Real Debate Wisconsin blog stated:  "This is not education folks, this is indoctrination." 

At the same time, in one school district in Kansas, a 5th grade class was given an art assignment to draw a picture of their choice.  When one student drew a picture of a cross, the teacher objected.  That's right, the teacher told the student that drawing a cross was not permitted in public school.

You won't read about this incident in the news media.  But I can tell you that the student's mother contacted our offices.  We provided the mother with an informational letter - outlining the fact that drawing a cross for a class assignment does not pose a constitutional crisis.  Barry, as you know, the fact is that the student has constitutionally-protected free speech rights - rights underscored repeatedly by the U.S. Supreme Court and cited by the U.S. Department of Education.

In 2003 the Department reiterated that students have the right to express their religious beliefs in assignments when it issued additional guidelines:

Religious Expression and Prayer in Class Assignments

Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Such home and classroom work should be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the school. Thus, if a teacher's assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer (for example, a psalm) should be judged on the basis of academic standards (such as literary quality) and neither penalized nor rewarded on account of its religious content.

The mother of the 5th grade student shared our letter with the school's principal and then sent us the following e-mail: "After a brief telephone discussion, the principal agreed with me and had a stern discussion with the art teacher. Bottom line, the art teacher will allow the cross in the assignment in the public school."

We're pleased that the outcome of this issue was resolved quickly and the rights of the student were protected.

As for the Wisconsin textbook-flap, no quick resolution in sight.  As the school superintendent put it: "This deals with issues on how we treat our students and how we treat free speech and how we control our curriculum.  We're going to investigate it and treat it as a serious matter that deserves a deliberate response."

Barry, what do you think?

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 our lives, to share our value systems. I agree with you that Americans should vote for candidates based on where they stand on important policy issues, but the values and principles upon which a candidate's policy positions are based are also important to consider.

Barry, I'm also quite surprised that you're asking the candidates to issue controversial theological statements such as "God does not do elections." You're entitled to believe that as a matter of personal theology, but many religious Americans believe that God is involved in all aspects of human affairs.

On the issues, the most recent Presidential debate reaffirmed that the candidates have starkly different positions when it comes to abortion. (You can watch the candidates address the issue of abortion during the debate at Hofstra University by clicking here.) When the topic of judicial nominations and overturning Roe v. Wade came up, Sen. Obama stated that judicial nominations are "going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe v. Wade probably hangs in the balance. Now I would not provide a litmus test. But I am somebody who believes that Roe v. Wade was rightly decided."

Sen. Obama added that "women in consultation with their families, their doctors, their religious advisers, are in the best position to make [the abortion] decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum . . . . With respect to partial-birth abortion, I am completely supportive of a ban on late-term abortions, partial-birth or otherwise, as long as there's an exception for the mother's health and life . . . ."

This is in line with Sen. Obama's earlier comments at the Saddleback forum. When Pastor Rick Warren asked, "at what point does a baby get human rights, in your view?," Sen. Obama said, "answering that question with specificity . . . is above my pay grade." He added, "I am pro-choice. I believe in Roe v. Wade . . . . I am in favor . . . of limits on late-term abortions, if there is an exception for the mother's health. . . ."

By contrast, when Rick Warren asked Sen. McCain "[at] what point is a baby entitled to human rights?" at the Saddleback forum, he responded: "At the moment of conception. I have a 25-year pro-life record in the Congress, in the Senate. And as president of the United States, I will be a pro-life president. And this presidency will have pro-life policies. That's my commitment. That's my commitment to you."

At this week's debate, Sen. McCain stated of Roe v. Wade, "I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test."

"I would consider anyone in their qualifications," said Sen. McCain, but added, "I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test."

When it came to judicial appointments, Sen. Obama said: "I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through." Sen. McCain's answer to that question was "I will find the best people . . . in the United States of America who have a history of strict adherence to the Constitution--and not legislating from the bench."

Barry, I'm sure we can agree that it is good that the candidates addressed the issue of abortion. It is also clear that they represent two very different viewpoints.

While they touched on the issue of judicial nominees, I would like to hear more about the judicial philosophy of each candidate and hear more about the kind of judges they would appoint. Since the next President will have a major impact on the judiciary for years to come--including most likely the Supreme Court--I would like this issue explored more thoroughly.

Barry, what about you?