Respondents' Brief in Jane Doe

[Brad Jacob]

Mark has to be right on this, doesn't he?  Surely the right way to resolve the constitutional issue can't be to have federal judges evaluating various kinds of public events to decide how important each may be in the minds of their beholders.  This makes no more sense than the Lynch v. Donnelly plastic reindeer rule, which left federal judges all over the country with the unenviable task of deciding whether Baby Jesus is close enough to Susie Snowflake to be constitutional.  There must be a more principled approach.  Answering the question, "Is this a government sponsored religious exercise?" may not be easy (see Jones v. Clear Creek, etc.), but I would think that the Court could at least give clearer guidance on that than on how to evaluate the importance of various government-sponsored activities in their various communities.

Brad

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Bradley P. Jacob, J.D.
Provost and Dean of the College
Patrick Henry College                         540-338-1776 (voice)
P.O. Box 1776                                    540-338-9167 (fax)
Purcellville, VA 20134-1776                bpjacob at phc.edu (email)
Web:  www.phc.edu

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>>> Mark Graber <mgraber at GVPT.UMD.EDU> 02/08/00 08:31PM >>>
I'm not sure how important the event has to be.  Suppose the school mandated that a prayer be said before meetings of the chess club, a club that had all of five members.  This strikes me as an easy establishment clause violation even though no one has an obligation (and almost no one has any deisre) to join the chess club.  I would not be surprised if a good many people on this list who disagree about many things, think the Kennedy analysis in Weisman seriously mistaken.  Maybe in Santa Fe the majority will rule that the state cannot sponsor a religious exercise.  period.  We might then have a sensible debate over what is a state sponsored religious exercise.  I prefer that debate to figuring out just how important a Texas High School football game is.

Mark A. Graber (who fears that under current doctrine it is unconstitutional to have a school prayer at football games in Texas, but not at Mepham H.S. on Long Island).