Judge Crabb’s Ambitious Establishment Clause

I am not going to go ballistic over Judge Barbara Crabb’s decision that the National Day of Prayer – an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic – violates the Establishment Clause.

She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn’t always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb’s decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don’t think she handled them in the right way.

It would be hard for me to conclude otherwise. I have argued — here and here — that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things – teach sex education, values clarification or promote patriotism – that could cause religious dissidents to “feel like outsiders.” The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.

My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.

But – again – there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional – notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted – particularly if they are have a long pedigree.

The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb’s position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.

Cross posted at Shark and Shepherd

This Post Has 2 Comments

  1. Gordon Hylton

    I agree that Judge Crabb’s opinion is wrong, both in terms of practical logic and history. I share Professor Esenburg’s hope that it will be overturned by the Seventh Circuit, and I agree that if the matter reaches the Supreme Court, the National Day of Prayer will be restored.

    At the risk of sounding a little school-marmish, I would like to point out that Dickens’ famous linkage of the word “law” and the animal “ass,” is rendered, “The law is a ass–a idiot,” not “an ass.” Mr. Bumble’s famous declaration in Chapter 51 of Oliver Twist, referred to in the above post, apparently gets the indefinite article wrong, using “a” rather than the grammatically correct “an”.

    Presumably Dickens knew the rules regarding “a” and “an,” so there is probably a point being made about Mr. Bumble and his minor malaprop. As many will remember, Bumble, who takes Oliver out of the orphanage when he is nine and puts him to work in the workshop, is not a particularly sympathetic character. However, it is outrage at being told that the acts of Mrs. Bumble, his wife, are imputed to him that he launches into his law/ass tirade.

  2. James Pawlak

    Atheism As Religon–PER Federal Courts

    It appears that the US Seventh Court of Appeals which did so in the case of:

    James J. Kaufman
    Gary R. McCaughtey, et. al.
    7th US Court Of Appeals
    Decided Aug. 19, 2005.

    Also related is the case of:
    James J. Kaufman
    Gary R. Mccarghry and Jamyi Witch
    US District Court
    Western District Of Wisconsin
    Opinion & Order Given
    23 March 2006.

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