Floodwaters and Undermined Walls

[Gibbens, Daniel G.]

Yes, calling Jim Henderson's first post "an effort to raise legitimate
[Establishment Clause wall] questions that was probably unnecessarily
provocative" seems a civil expression of forgiveness for "those who
(verbally) trespass against us."  And Frances Paterson be praised for
calling that effort what it was.
Dan Gibbens
University of Oklahoma  

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Mark Graber
Sent: Friday, September 02, 2005 7:36 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Floodwaters and Undermined Walls

Having jumped into this discussion a bit late, let me elaborate on
points that I believe Joel Sogol has elegantly made.  At times of
personal tragedy, many strict separationists believe that civility
requires that we sometimes sit on constitutional objections (which
others may think are mistaken).  We sometimes sit even though we believe
while some of what we are hearing are sincere expressions of religious
faith, we also sometimes hear what we believe (rightly or wrongly) are
elected officials pandering to popular religious sentiments (church
attendence does seem to pick up when people run for office).  But this
form of civility should run in both directions.  To use a slightly
different example, based loosely on real events, I think it would be
grossly uncivil of me to object to the infusion of a certain dose of
Christianity into memorial services run by public schools when a student
has died, even though I happen to think (rightly or wrongly) that this
violates the establishment clause.  But surely it would be also uncivil
for someone to say publicly at the service, "Graber, surely you do not
believe this invocation of Jesus or prayer violates the establishment
clause."  There is actually an interesting history in the 18th and 19th
century of waiver of constitutional rights that I think covers these
circumstances (interestingly, several representatives in the first or
second congress urged waiver to justify what they thought was an
unconstitutional but morally decent bill authorizing refugee aid).
     I wonder whether in this time of disaster, several list members
whose contributions are consistently valuable may wonder whether a) they
inadvertently picked a fight with people who had civility reasons for
not fighting at this time or b)overreacted to an effort to raise
legitimate questions that was probably unncessarily provocative.

Mark A. Graber

>>> JMHACLJ at aol.com 09/01/05 12:21 PM >>>
The wall is the central metaphor defining the meaning and work of the  
Establishment Clause for many commentators including on this list.  When
the 
government "gets away" with some emblematic behavior tinged with
religious  
connotations, the hue and cry of breach is predictable.
 
We are all watching with horror as the situation on the gulf coast goes 
from 
terrible to unimaginable.  And in the midst of it, suddenly, the  breach
of 
the levee walls made the unimaginable simply a stop on the road to the  
unthinkable.
 
But this list is for thinking.
 
As I have heard the cable news bulldogs talking about lack of sufficient
 
preparation on the part of the federal government, I wondered, "Is that
really  
the case?  Have all federal government officials really fallen down on
the  
job?"
 
It took me a few minutes of thought to recall that at least one federal 

official, a judge, had looked ahead to this day.  Like the proverbial
ant  
laboring through the summer's sunshine, he prepared for this eventually.
  And, 
unlike so many "talkers," he actually did something.
 
You may be wondering about the identity of the judge in question.  I  am

wondering how you could forget a judge who would have the prescience,
the  
forethought, to see the inevitability of a future disaster of, well,
biblical  
proportions, and take action. 
 
I am, of course, referring to Judge Ira DeMent.  
 
After he concluded that the Alabama Prayer Statute was unconstitutional,
he  
issued a permanent injunction that was, if I correctly recall, much
debated 
and  with heat on this list.  One key feature of his order, the one
which  
demonstrates today his prescience then was his judicial ban on
expression of  
religious or devotional sentiments over school public address systems
even in  
times of war, natural disaster, or serious community distress.  
 
This week, as Katrina has worn away at the levee walls in New Orleans,
we  
have the news that another assault on the wall of separation took place 

yesterday, when Louisiana's Governor declared a Day of Prayer.  Governor
Blanco 
urged Louisianans to pray to God and even told them how to  pray and
what things 
for which to pray.  _You can read  her declaration here._ 
(http://www.gov.state.la.us/Press_Release_detail.asp?id=988)  Or point
your browser to 
_http://www.gov.state.la.us/Press_Release_detail.asp?id=988_ 
(http://www.gov.state.la.us/Press_Release_detail.asp?id=988) .
 
I wonder whether anyone will be found to stand in this  breach?  Will
any 
forward thinking, DeMent-minded person or group will  step forward to
close it 
again, to push back the might rushing waters of  government-encouraged, 
government-endorsed religious invocations of divine  aid?  Will People
For, or 
Americans United, or the ACLU, ride in  to the rescue?  
 
Jim Henderson
Senior Counsel
ACLJ

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