Appeals Court Bans Prayer 'in Jesus' name'

Thu Jul 24 13:19:55 PDT 2008

I agree with some of the points Professor Esenberg makes, but just to be
clear, the result in this case wouldn't change if governmental prayers
in Jesus' name were considered constitutionally permissible. 
Fredricksburg would still be allowed (under the government-speech
doctrine) to keep their own prayers nonsectarian.  Turner was seeking to
impose (not lift) constitutional restrictions on Fredricksburg. 

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)

>>> richard.esenberg at marquette.edu 7/24/2008 2:54:26 PM >>>

I agree with Professor Gibson that faithful Christians can pray without
invoking the name of Jesus and with Professor Lund that this seems like
the correct result under existing law (even Justice Scalia might agee)
and I appreciate Professor Laycock's invocation of the great Alexander
Bickel.

Wrong answers is what the wrong questions beget,

One of my favorite phrases. But I wonder if the right question is
whether government, as we know it in the 21st  century, ever can avoid
speaking religiously. While the monument questions don't put the
question in the starkest form, the more things on which government
chooses to speak, the more likely it is to either contradict some
group's strongly held religious belief or minimize them by treating them
as irrelevant. Government can, of course, avoid speaking in expressly
sectarian terms, but the idea that this avoids (or even softens) the
religious insult seems empirically wrong and rooted in a view of what
religion is and where it ought to be allowed that is itself not
religiously neutral.

Maybe that resolution - itself a very liberal protestant denouement -
is the best we can do, although the idea that this has resulted in less
division and more liberty is not self evidently true.

But, then again, perhaps we ought to ask again if allowing a prayer in
Jesus' name really ought to constitute an establishment of religion.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
richard.esenberg at marquette.edu 
________________________________
From: religionlaw-bounces at lists.ucla.edu
[religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
[laycockd at umich.edu] 
Sent: Wednesday, July 23, 2008 7:15 PM
To: religionlaw at lists.ucla.edu 
Subject: Re: Appeals Court Bans Prayer 'in Jesus' name'

Well actually, the court of appeals did not ban prayer in Jesus' name. 
Nor did the City of Fredericksburg ban prayer in Jesus' name.  Prayer in
Jesus' name is continuing all over the city.  The City said it would not
sponsor prayer in Jesus' name; if anything was "banned," it was only at
official city functions where the City controlled the agenda and thus
controlled whether there would be a prayer at all.

I agree that this is a very awkward decision.  But it is the inevitable
result once we start down the path of allowing government-sponsored
prayers.  Wrong answers is what the wrong questions beget, and when the
answer is that the best solution is to restrict the religious content of
prayers, the system has asked the wrong question.  The only way to fix
this is to reconsider Marsh v. Chambers.

Quoting Gordon James Klingenschmitt <chaplaingate at yahoo.com>:

> Press release below.   Please forward widely.   Please call for
interviews!
> In Jesus,
> Chaplain K.
> ------------------------
>
>       Appeals Court Bans Prayer 'In Jesus' Name'
>
> Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org,
> 719-360-5132 cell, chaplaingate at yahoo.com 
>
> WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court
> of Appeals today ruled that the city council of Fredericksburg,
> Virginia had proper authority to require "non-sectarian" prayer
> content and exclude council-member Rev. Hashmel Turner from the
> prayer rotation because he prayed "in Jesus' name."
>
> Former Supreme Court Justice Sandra Day O'Connor, writing the
decision, said:
> "The restriction that prayers be nonsectarian in nature is designed
> to make the prayers accessible to people who come from a variety of
> backgrounds, not to exclude or disparage a particular faith."
>
> Ironically, she admitted Turner was excluded from participating
> solely because of the Christian content of his prayer.
>
> A full text copy of the decision, with added commentary by Chaplain
> Klingenschmitt is here:
> www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf 
>
> Gordon James Klingenschmitt, the former Navy chaplain who faced
> court-martial for praying "in Jesus name" in uniform (but won the
> victory in Congress for other chaplains), defended Rev. Hashmel
> Turner:
>
> "The Fredericksburg government violated everybody's rights by
> establishing a non-sectarian religion, and requiring all prayers
> conform, or face punishment of exclusion. Justice O'Connor showed
her
> liberal colors today, by declaring the word 'Jesus' as illegal
> religious speech, which can be banned by any council who wishes to
> ignore the First Amendment as she did. Councilman Rev. Hashmel
Turner
> should run for mayor, fire the other council-members, and re-write
> the prayer policy. And if he appeals to the Supreme Court, I pray he
> will win, in Jesus' name."
>
> For media interviews, call:
> Chaplain Klingenschmitt 719-360-5132 cell
> Email: chaplaingate at yahoo.com 
> Web address: www.PrayInJesusName.org 
>
>
>
> Source:
> http://christiannewswire.com/news/558917273.html 
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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