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.

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Debating Christian Legal Society v. Martinez

Earlier this week, I had the pleasure of making a quick visit to the University of San Diego Law School to engage in a debate on the case of Christian Legal Society v. Martinez, which was argued before the United States Supreme Court on Monday. The event was made possible by a grant from the Templeton Foundation and sponsored by the USD chapters of the Federalist Society, Christian Legal Society and PrideLaw.

I was on the ground for less than 24 hours, but San Diego is beautiful (although I think I picked the one day in the last ten years when the weather in Milwaukee in April was just as nice) and the USD campus is exquisite. My opponent (Professor Shaun Martin), the moderator (Dean Michael Kelley) and the student hosts were gracious. The lunch at La Gran Terraza was very good. What about the debate?

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Being Fair to Church Autonomy After Smith

Stuart McPhail makes an interesting observation in his short essay “Being FAIR to Religion: Rumsfeld v. FAIR’s Impact on the Associational Rights of Religious Organizations,” 3 Harv. L. & Pol’y Rev. 221 (2009), which was recently brought to my attention by the Alliance Defense Fund’s excellent “Alliance Alert” daily email (a must-read for scholars and activists interested in religious liberty, marriage, or life issues). In the essay, McPhail looks at the freedom of expressive association doctrine as an alternative grounding for the rights of religious organizations. He does so because he questions whether the traditional protection for such rights, the church autonomy doctrine, has survived the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990).

McPhail asks “whether or not the church autonomy doctrine has survived Smith.” He acknowledges that courts which have considered the matter, including five federal circuit courts, have held that it did so. However, he questions whether “Smith ended religious organizations’ unique associational rights, leaving only the protections for expressive associations and any limitations to them, upon which all other organizations must rely.” 

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