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A church-state case may be an early test for Neil Gorsuch

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ashbird

The difficulty presented by the Establishment clause and Free Exercise clause in all religion cases is these 2 First Amendment clauses cut both ways, creating a most unseemly tension in the pursuit of justice under law.
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A “religious person” (which includes a legal entity that falls outside the legal arm of State Action) has an equal right to exercise a religious faith no less and no more than an irreligious person who has a right to not have a religious faith and be free from government’s imposition on him of a religion faith.
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The issue of a person’s values and morality form yet another dimension in the tension. Call it a 3-legged beast.
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For this reason, it is erroneous to approach, as a matter of First Amendment rights, a case by formulating a desired outcome based on any of the 3-legs a priori, and reason backward to reach that outcome. That’s stuff politics are made of. Not law.
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Law is not a political theory. It is a body of rules and regulations that has as its purpose to safeguard and ensure the optimal co-existence of different minds and different bodies in a society consisting of different people.
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Were it a political theory, law should undergo a name change to reflect the difference.
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Until the name change, law continues to exist to regulate the real lives of real people in a society.
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Given this purpose, the focus of law is FACTS. For lives are lived in FACTS, not theories.
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I have no more to go by than an instinctive feeling that Mr Gorsuch is a legal thinker and judge who thinks in the language of FACTS, not the language of politics.
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A couple of anecdotes for levity. A local lawyer opposing the famous Rufus Choate in the White Plains County Court urged the jury to disregard his “Chesterfieldian urbanity”. Choate blandly replied that this might be preferable to the other advocate’s “Westchesterfieldian suburbanity”. His kinsman, Joseph Choate, American ambassador in London, was leaving a reception when the Argentinian ambassador told him, “Call me a cab!” “You’re a cab, sir,” answered Choate. I have a feeling Mr. Norsuch is a lawyer who will take a laugh, instead of offense, at these 2 anecdotes. He seldom skips the nuances in FACTS.

shoe

From the facts presented it does appear that Jackson crosses the line of what is considered tolerable legislative prayer. In fact, it seems as if the board's behavior towards the plaintiff is exactly the sort of religious persecution the Founders sought to prevent with the Establishment Clause.

guest-ajsawmji

As a Christian for over 60 years, I firmly object to sectarian prayers in governmental meetings. If a formality is needed to open a meeting, then say the pledge of allegiance, and let those who desire to say it without "under God", say it as they please. BTW, I also object to and do not say "under God" in my saying of the pledge. To me, it contravenes the First Amendment of the Constitution and it offensive to any patriot who does not believe in the Christian, Jewish or Muslim ("Allah" is Arabic for "God") God.

Anaximandre in reply to Aurelius512

The Ten Commandments are not depicted on the south wall frieze. Only the last half, containing secular laws, are depicted thereon. The first half, containing the religious commandments recognizing a deity, are omitted. (Of course, the friezes are only of historical, not legal, significance, since they were never proposed as Constitutional Amendments or ratified by three fourths of the states.)

Indeed, one can easily see how a president of the American Bible Society would object to the government usurping his individual rights to free speech and to the free exercise of religion. The government, acting through its agents or officials, has no such rights. Those individual rights are reserved to the people, who never surrendered or delegated such rights to the government.

kevinod77 in reply to guest-ilinmoj

“Strongly guarded as is the separation between Religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.” James Madison; Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments

A. Andros

Prayers offered at government assemblies are usually pretty innocuous -- but the Jackson prayer explicitly prayed in Jesus' name.

As a Christian, I would not care to hear a meeting at which I am present open with an invocation of Muhammed.

Actually, if one thinks that prayer is useful in making policy then the best place for it is probably at home and before the meeting.

guest-ilinmoj

The issues raised here are precisely the reason Gorsuch should not be confirmed. I am deeply uncomfortable with a person who feels obliged or entitled to refer to his faith in his first public address as a nominee to SCOTUS. Can one imagine an atheist or muslim or ... bringing up his or her faith?

kevinod77

Let's see what a couple of our Founding Fathers have to say about this matter:

“Christianity neither is, nor ever was a part of the common law.” Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814,

“The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or in America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses.” John Adams, “A Defense of the Constitutions of Government of the United States of America” 1787-1788

To be fair, you're unlikely to find muslims invoking muhamamad's name in a prayer, he is a prophet no more. Their prayer would be to God alone, probably more similar in nature to the jewish prayer to Elohim. Jews and muslims mention Moses and Muhammad more in terms of sending blessings rather than asking them for something that only God can deliver.

Anaximandre in reply to ParksDept

Government officials "who choose to say a prayer prior to commencing with their duties" must also do so prior to taking up the public position from which they are about to commence with such duties. A presiding officer who vocalizes a prayer from his chair just prior to calling a public (government) meeting to order is attempting to make a sham of compliance with the 1st Amendment.

CA-Oxonian

All societies reach a point where they have to decide whether or not they want a secular or a myth-based context. Religionists, obviously, always clamor for their particular myth (whatever it may be) to be given primacy.

But the notion that a collection of fables assembled by a group of illiterate and innumerate semi-nomads several thousand years ago constitutes an adequate basis for social and legal moeurs is obviously absurd. And trying to pretend that such tales have universal relevance to contemporary society is even more absurd.

Which is why religionists should never be permitted any form of authority in any society that aspires to civilized values. We may feel sorry for religionists but we must never permit our pity to obscure the fact that myths are never a basis for making real-world decisions.

shoe in reply to ParksDept

From the essay, no evidence other than the bit about turning one's back on the plaintiff whilst speaking. Was the board reacting to the content of the plaintiff's speech (perhaps an Establishment issue), or the manner in which that speech was delivered (appropriate decorum)?

kevinod77 in reply to ParksDept

No one is saying you can't do a public display of your religious beliefs, on your private property. The line is crossed when a specific religion is allowed to be displayed on "public" or government property! Only an ignoramus would contend that the Ten Commandments is a secular display! Our country was NOT founded upon Christian beliefs. Plus the Judaeo/Christian "commandments" were plagiarized from the Egyptian Book of the Dead! Trump and his fake Christian persona is nothing short of disgusting!

Anaximandre in reply to ParksDept

Government officials "who choose to say a prayer prior to commencing with their duties" must also do so prior to taking up the public position from which they are about to commence with such duties. A presiding officer who vocalizes a prayer from his chair just prior to calling a public (government) meeting to order is attempting to make a sham of compliance with the 1st Amendment.

Anaximandre in reply to ParksDept

The 1st Amendment protects the religious speech of private individuals and private associations, but it probibits the religious speech of government or government agents. Free speech is an individual right. Governments have no such right.

benbrown72679

From the article:
The ten commandments “can convey a ‘secular moral message’”, he wrote, “about the primacy and authority of law”. They symbolise “the ‘history and moral ideals’ of our society and legal tradition”.

Well... maybe. But if I were going to pick something to convey a secular moral message, it wouldn't be anything that declares, as its first declaration, that "Thou shalt have no other gods before me."

The ten commandment are not a secular moral message. They are blatantly religious.

The ten commandments are about the authority of a god, not the authority of law.

The ten commandments are mostly about choosing a god and properly honoring him and not offending him (no other gods, no graven images, don't take his name in vain, honor Sundays). To claim any secular value to them requires some mental gymnastics.