April 22, 2010

"We have a constitutional scholar in the White House who is disregarding the secular underpinnings of our government."

Said Annie Laurie Gaylor, co-president of Freedom From Religion Foundation, which sued President Obama (and others) over the annual proclamation of a National Day of Prayer. Judge Barbara Crabb, here in the Western District of Wisconsin, agreed with the Foundation that there's a violation of the Establishment Clause. Obama will appeal that decision. So, it's Obama, pro-prayer. Are you surprised? (I'm not!)

73 comments:

mesquito said...

Where can I find all this Obama-generated Constitutional scholarship?

former law student said...

He's a ConLaw professor -- presumably he knows that the same folks who drafted the First Amendment paid for chaplains for the House and Senate.

Balfegor said...

Obama will appeal that decision. So, it's Obama, pro-prayer. Are you surprised?

Not particularly. Anti-prayer Obama would play awfully badly with practically everyone. After all, I imagine it's only a tiny minority of atheists and agnostics who even care about this issue. I'm an atheist, for one, and I think the suit is extremely silly. It's like suing over a congressional resolution celebrating a religious figure. Or suing over the existence of the Christmas holiday or something. How do you even get standing for a suit like that?

Revenant said...

He wouldn't have dragged his family to that nutty church for twenty years if he wasn't genuinely religious.

Original Mike said...

"I'm an atheist, for one, and I think the suit is extremely silly."

Ditto.

former law student said...

How do you even get standing for a suit like that?

I presume Flast v. Cohen is still good law.

Ann Althouse said...

@former law student Flast v. Cohen approves of taxpayers challenging taxing/spending that violates the establishment clause. Declaring a national day of prayer lacks the "dual nexus" Flast requires -- the connection to taxpaying and the special limit on taxing (the Est. Cl.).

In fact, Judge Crabb found standing based on the plaintiffs' feelings of exclusion when the government endorses religion, and I don't think that will hold up on appeal.

Lem said...

This little brush fire could get interesting at the upcoming SCOTUS nomination hearings.

While I would like us to keep the National Day of Prayer.. We are a nation of laws first.. "whether we like it or not" (to use Obama speak)

So, if the law is unconstitutional.. that's for the Supremes to decide.

ricpic said...

I toldya that boy be nothin' but a bitter clinger!

--Rev. Wright

themightypuck said...

A National Day of Prayer is similarly silly. I don't understand why politicians have an insatiable need for these sorts of things and why a free people would support them. It reeks of clever ways politicians manage to use the public purse to campaign.

former law student said...

He wouldn't have dragged his family to that nutty church for twenty years if he wasn't genuinely religious.

Obama's personal views have nothing to do with his position -- he's merely calling balls and strikes.

But who taught Judge Crabb ConLaw?
And was venue proper in the WD Wis?

paul a'barge said...

Obama is a muslim. What did you expect him to do.

paul a'barge said...

Judge Crabb found standing based on the plaintiffs' feelings of exclusion

Listen up folks. Feeling excluded is the most trivial form of suffering that should be endured by those who seek to drive religion out of public life in America.

former law student said...

Judge Crabb found standing based on the plaintiffs' feelings of exclusion when the government endorses religion

I don't understand how that fits the current Establishment Clause jurisprudence, because they are not coerced to pray, listen to prayer, or even think about praying. They can go about their day unmolested.

Are you sure there's no nexus with tax involved? Presidential proclamations are not free of charge: the resources it takes to make and publish the proclamation could be spent on National Walnut Week or perhaps Administrative Professionals Day.
But in trying to define a secular purpose behind the call to prayer -- Our country needs all the help it can get.

former law student said...

Obama is a muslim. What did you expect him to do.

Big difference between calling the people to prayer once a year, and calling them to pray five times a day.

Lem said...

Big difference between calling the people to prayer once a year, and calling them to pray five times a day.

At the rate Obama is going, we are going to be praying to him every time we reach for the wallet.

former law student said...

This is the most tepid endorsement of religion that I can imagine:

36 U.S.C. § 119 : US Code - Section 119: National Day of Prayer

The President shall issue each year a proclamation designating
the first Thursday in May as a National Day of Prayer on which the
people of the United States may turn to God in prayer and
meditation at churches, in groups, and as individuals.

HDHouse said...

former law student said...
"Obama is a muslim. What did you expect him to do.
Big difference between calling the people to prayer once a year, and calling them to pray five times a day."

Ohhhh I thought you meant the Catholic church (and some Lutheran churches) with ths short morning evening and night prayers as well as Matins and Lauds...why do people jump at to assume Islam all the time. gosh.

rhhardin said...

Prayer doesn't require belief.

If you knew who you addressed, it wouldn't be prayer.

It would be like ordering a pizza.

Eric said...

In fact, Judge Crabb found standing based on the plaintiffs' feelings of exclusion when the government endorses religion, and I don't think that will hold up on appeal.

Wow, that kind of logic would pretty much give everybody standing for everything.

Eric said...

Obama will appeal that decision. So, it's Obama, pro-prayer. Are you surprised?

Of course not. Religion for Obama just a check box on his politician's to-do sheet. If it gave him a political advantage he would be perfectly happy to have a "national day of not praying" instead.

TosaGuy said...

Professors get upset when instructors and lecturers are referred to as professors.

Ann Althouse said...

@former law student From the March 1, 2010 opinion dealing with standing:

"In many cases the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing cases." Allen v. Wright, 468 U.S. 737, 751-52, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). [*18] Unfortunately, neither the Supreme Court nor the Court of Appeals for the Seventh Circuit has decided a case on all fours with this one. Cases in which plaintiffs assert injuries as tax payers make up most of the decisions in which the Supreme Court has engaged in substantial discussions of standing in the context of an establishment clause challenge. E.g., Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 127 S. Ct. 2553, 168 L. Ed. 2d 424 (2007); Valley Forge, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700; Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). Plaintiffs are not asserting such an injury in this case."

Here's the description of the injury:

"The primary injury plaintiffs allege is the feeling of unwelcomeness and exclusion they experience as nonreligious persons because of what they view as a message from the government that it favors Americans who pray. That injury is intangible, but it is no less concrete than the injuries in the many cases in which courts have recognized the standing of persons subjected to unwelcome religious speech. The only difference between those cases and this one is that plaintiffs have not come into physical or visual contact with a religious display. However, that difference has little significance in a case like this one involving a national message intended to reach all Americans. Although plaintiffs do not have to "pass by" the National Day of Prayer, they are confronted with the government's message and affected by it just as strongly as someone who views a religious monument or sits through a "moment of silence," if not more so. To find standing in those cases while denying it in this one would be an exercise in formalism."

edutcher said...

Hell, the "constitutional scholar", if he is one, disregards the rule of law. What makes anyone think he cares about the Constitution, or any part of it?

Lem said...

..why do people jump at to assume Islam all the time.

Fort Hood.. or something.

Ann Althouse said...

Obama is not wrong on the law here, people. He's surely right on standing, and he's also right on the Establishment Clause merits.

Note: I have taught the course "Religion and the Constitution" for years.

Ann Althouse said...

But he's not appealing because of his scholarly view of the legal merits, I don't think.

Seven Machos said...

The misunderstanding of the Establishment Clause as it was written is so massively great at this point that it is being used against religions.

The Establishment Clause forbade the federal government from establishing a national argument. I cede that the post-Civil Constitution forbids states from doing this also.

However (and I stress that I am not a member of any religion), under no reasonable reading of the Establishment Clause or any line of cases can you conclude that atheism -- most definitely a religion itself -- ought to be the only religion allowed to be recognized by any government.

I'm with Obama on this one.

Seven Machos said...

a national argument

Ha! Not sure where that came from. Should be a national religion.

Lyle said...

Officially Obama is as religious as Sarah Palin... so of course he's going to defend it.

madawaskan said...

Anti-prayer Obama would play awfully badly with practically everyone.

I never thought Obama played well with others.

Rick said...

I could be wrong but I think President Obama regards religion in purely utilitarian terms. It is useful for certain social-political ends. When religion does not advance those social-political ends he ridicules and devalues it ("bitter clingers to God and guns").

Now having said that yes I am surprised. Because which social-political ends does the National Day of Prayer advance? Those of the left? of statism? Not so far as I can tell. And President Obama has heretofore not shown much concern for what people like or don't like. So I can't imagine he would bat for the Day of Prayer just to keep people happy.

So why? How does this help the Cause?

Lem said...

So I can't imagine he would bat for the Day of Prayer just to keep people happy.

It doesn't cost anything.. and Bush did not start it.

Methadras said...

Let me put it you this way, I have more bonafides in ConLaw than President Barely does and I'm not even a lawyer.

AJ Lynch said...

Here is the litmus test to determine how Obama will react.

Does the issue affect the redistribution of wealth?
Yes - he will go to his far left.
No - he will go to his right.
Except if Israel is involved, then he will always go with the Arabs/Muslims.

AJ Lynch said...

Obama was just a guest lecturer right? So it's not accurate or precise to say he was a Con Law Professor?

Just like the Law Review- I read he was actually the President not the editor.

AJ Lynch said...

We should have a National Day of "We are so broke we can't afford these national days anymore".

Chip Ahoy said...

So at dinner I asked my brother if he'd like t say grace. Boy, was that ever a mistake. He cheerfully agreed, as is his wont, he launched into the longest rambling most desultory grace I've ever had to sit through. The food went cold. I looked around to see if other people were getting as impatient as I was. My sister was clearly deeply moved. In tears, in fact. When asked if anybody had anything to add, with all the self-restraint I could muster I fought the impulse to say, yeah, "Lord, please help James say shorter graces." I knew that's what everybody was thinking, but they'd never forgive me. See how I learn?

Hombre said...

Someone must file suit demanding the repeal of Thanksgiving.

English writer and Catholic, G.K. Chesterton reputedly said, “The worst moment for an atheist is when he has a profound sense of gratitude and has no one to thank.” Hence standing.

As all those grateful religious people are thanking God for the bounty, Judge Crabb's plaintiff's will be in crisis as well as feeling "unwelcome and excluded."

For that matter, as an ungrateful person who is lamenting the loss of medicare advantage, the increased tax burden for my children and grand children occasioned by the health care bill, etc., etc., etc., so will I.

Thanksgiving is a message from the government that it favors Americans who are religious and grateful and gives them a day off to thank God.

What a shameless violation of the First Amendment, and maybe even equal protection for the ungrateful!

Lem said...

What a shameless violation of the First Amendment, and maybe even equal protection for the ungrateful!

Obama's covered.. He said we should thank him.

Michael Hasenstab said...

Judge Crabb found standing based on the plaintiffs' feelings of exclusion..

Based on that, I could sue 95% of the women I wanted to date in college.

David said...

"The secular underpinnings of our government . . . "

Of course our system has secular underpinnings. But the foundation of the United States is not exclusively secular, as even a cursory examination of our history will show. How did "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" come to mean "government should not prefer one religion to another, or religion to irreligion?"

It's quite a journey from the former to the latter, and tells us a huge amount about loss of confidence in the uncomplicated and straightforward over out history. The same amendment says that Congress shall pass "no law" abridging freedom of speech. Yet the same court that virtually prohibits prayer from governmental platforms also allows major restrictions on speech in the name of electoral fairness. Strange.

I don't know how much Althouse's course goes into the long term history, but I'd love to see the syllabus.

S

Kirstin said...

I expected Obama to appeal. NDOP is a tradition, and more people would be upset if he didn't appeal than if he did.

Last year he didn't hold an event to observe NDOP, maybe to do the opposite of what Bush did, which was to hold a breakfast and service.

JAL said...

I do not believe "ConLaw professor" is the accurate title for what he did.

And ditto "scholar."

What's that about?

Besides that ... it doesn't surprise me.

buster said...

I think Obama is appealing because the Department of Justice is required to defend the constitutionality of Acts of Congress.

buster said...
This comment has been removed by the author.
New "Hussein" Ham said...

We have an anti-Semite in the White House who wants to kick Jews out of their homes in Jerusalem.

So, I'm sure the Barbara' Crabb's of the world don't concern him in the least.

former law student said...

Professor Althouse, thanks for the citation; I really appreciate your courtesy.

From the statute, the proclamation would seem to be more accurately called "The National Day of Prayer if you feel like it." Encouraging people to do what they would do anyway does not take anything away from the uninterested. This is not like celebrating National Beef Week which would make vegans feel excluded and unwelcome. This is like celebrating National Cane Sugar Day -- the impact it would have on diabetics -- feelings of exclusion -- should not be the determining factor.

The subject matter of religion should not matter because the right to free exercise is constitutionally protected. If Congress set aside days to encourage us to exercise other Constitutional rights, could people say they were acting unconstitutionally?

former law student said...

Obama was just a guest lecturer right? So it's not accurate or precise to say he was a Con Law Professor?

Obama was not a guest lecturer, because that is a person invited by a professor to come into a class, give a lecture, and leaves. Nor was Obama a lecturer, because those were people who taught a single course on a topic they were expert in from their work.

Obama was a Senior Lecturer, like Seventh Circuit Judges Posner and Easterbrook. He did not lecture on the subject matter of his day-to-day work. As a Senior Lecturer Obama was in fast company indeed: for instance Posner is a prolific author on Law and Economics, making him especially desirable for the University of Chicago.

Obama is a scholar in that he was learned in the law, despite his youth and relative inexperience. But if he had wanted to be a tenure-track dude, I'm sure he could have tossed off the necessary two law review articles.

former law student said...

We have an anti-Semite in the White House who wants to kick Jews out of their homes in Jerusalem.

By New Ham's rule that anyone who criticizes the actions of any Jew is an anti-Semite, New Ham himself is an anti-black racist for criticizing the actions of a black man. For shame, New Ham, for shame.

Flexo said...

A frivolous opinion in a frivolous case.

They really should make Rule 11 sanctions applicable against judges who spout such nonsense.

Revenant said...

He's a ConLaw professor -- presumably he knows that the same folks who drafted the First Amendment paid for chaplains for the House and Senate

While this is true, it is also true that James Madison -- who deserves the title of "father of the Constitution and Bill of Rights" if anyone does -- felt that it was unconstitutional for Congress to have paid chaplains.

Alex said...

But whenever Bush even mentioned God the liberals went into a tizzy, charging him with violating the Establishment Clause.

HDHouse said...

Alex said...
But whenever Bush even mentioned God the liberals went into a tizzy, charging him with violating the Establishment Clause."

well not as much as when Bush would laud someone for doing God's work and then go take a nap. That indeed did drive me crazy.

AllenS said...

The Obama administration plans to appeal a district judge's ruling declaring unconstitutional the annual National Day of Prayer.

Obama himself, doesn't have a fucking clue.

Mick said...

Obama, the constitutional scholar is also ignoring A2S1C5. He is certainly NOT a Natural Born Citizen due to the admitted fact that he, at birth, owed allegiance to Britain. No matter WHERE he was born. Why do no "Con Law" scholars (Ms. Althouse) not discuss this issue? Are they scared of the "birther" invective? have they been told not to? Where does it say that a Natural Born Citizen is simply born in America with no regard for nationality of parents?

TMink said...

Secular underpinnings of our government? Wouldn't it be better to have someone in her position that had actually read and understood our founding documents?

These people are such lightweights.

Trey

TMink said...

I love this line: "That injury is intangible, but it is no less concrete"

Hee hee. Concrete and tangible are synonyms.

Trey

New "Hussein" Ham said...

"By New Ham's rule that anyone who criticizes the actions of any Jew is an anti-Semite ..."

No ... by my rule anyone who wants to toss Jews out of their homes in their own country of Israel is a rabid anti-Semite.

And that's precisely what Barack Obama is telling Jews. He is telling Jews that the price of nuclear negotiations with Iran is scaling back settlements in their own country.

It's fucking offensive.

Barack Obama is pointing Iran's nuclear guns at Jews and telling them to leave their homes. He's threatening to allow Iran to unleash another Holocaust upon Israel unless they leave their homes.

His anti-Semitism is plainly transparent. It's disgusting and it's offensive.

And if you support Barack Obama, you are an anti-Semite too.

MadisonMan said...

For me, the phrase National Day Of Prayer ranks right up there with Think of the Children.

Regardless of its Constitutionality.

Government should have better things to do than pander.

New "Hussein" Ham said...

If you attend a Tea Party rally, you're a "racist" - right? Because only racists attend the all-white Tea Party rallies. It's like a klan meeting, right?

So, if you support Barack Obama - and Barack Obama wants to kick Jews out of their homes in Jerusalem - then that makes you an anti-Semite Jew hater.

Right?

former law student said...

New Ham: How can anyone be kicked out of homes that have yet to be built?

Compare Israelis bulldozing Arabs' homes to the ground, as they have for decades -- what is the proper adjective for that? Isn't being "evicted" kinder than having your house levelled?

Consider that the local Arabs are Semites as well, although a few Hamites have no doubt slipped in over the centuries.

New "Hussein" Ham said...

"Compare Israelis bulldozing Arabs' homes to the ground, as they have for decades -- what is the proper adjective for that?"

I call it securing their borders against terrorism.

It's good that you've decided to come out of the closet and accuse Israel of rights abuses. You are revealing yourself for everyone to see as being a rabid anti-Semite.

It's no wonder you support Barack Obama.

You're two peas in an anti-Semite pod.

Joe said...

It wouldn't be so bad if it was balanced out by a National Day of Cursing.

TMink said...

Joe, every day is a national day of cursing!

Trey

former law student said...

I call it securing their borders against terrorism.

"Extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue"

New "Hussein" Ham said...

Elie Wiesel disagree with you. He thinks Barack Obama's actions are anti-Semetic.

Elie Wiesel: "For me, the Jew that I am, Jerusalem is above politics. It is mentioned more than six hundred times in Scripture — and not a single time in the Koran. Its presence in Jewish history is overwhelming. There is no more moving prayer in Jewish history than the one expressing our yearning to return to Jerusalem. To many theologians, is IS Jewish history, to many poets, a source of inspiration. It belongs to the Jewish people and is much more than a city, it is what binds one Jew to another in a way that remains hard to explain. When a Jew visits Jerusalem for the first time, it is not the first time; it is a homecoming. The first song I heard was my mother’s lullaby about and for Jerusalem. Its sadness and joy are part of our collective memory."

For you to continue to support Barack Obama, you have to close your eyes to his blatant and sickening attempts to eject Jews from their homes inside Israel. And if you can do that, you are a Jew hater same as Barack Obama and your day will come.

former law student said...

you have to close your eyes to his blatant and sickening attempts to eject Jews from their homes inside Israel.

Kindly explain to me how anyone can be ejected from a home that has yet to be built.

Revenant said...

He is certainly NOT a Natural Born Citizen due to the admitted fact that he, at birth, owed allegiance to Britain. No matter WHERE he was born. Why do no "Con Law" scholars (Ms. Althouse) not discuss this issue?

Because its a big bucket o' crazy.

Seven Machos said...

No birthers here, please. Obama had an American mother. Therefore, he is American under the law. It doesn't matter where he was born.

You people are loons and you make my side look bad, so please shut the fuck up.

Revolution said...

Hey, babbling quranic verses in a madrassah is also prayer, so he's got standing...

Revolution said...

Seven Machos,
Evidently, you are blatantly ignorant of the law. Yes, Obama's mother was American, and he is an American citizen. HOWEVER, the constitution requires that the President be a natural born American, which means he had to be born in a US state or territory, embassy or military base.
John McCain was born in the Panama Canal Zone when it was US territory, so he's qualified to be President. Obama was born in Kenya so he is not, even though he is an American citizen.
The documents in Hawaii that the *democrat* politicians there refuse to show to the public are whats called a "Certification of Live Birth" which legally is distinctively different from a "Birth Certificate". You get a birth certificate if/when you are born in a US state/territory/etc. If you were not born in US jurisdiction on a trip and your parents want to certify you are an American, they go to a justice of the peace and get a certification of live birth, which doesn't say exactly WHERE the person was born, only who the persons biological parents are. These certifications are also issued by the courts when a persons identity is changed, and when a child is adopted, legally displaying the adoptive parents as the "birth parents".

Revenant said...

HOWEVER, the constitution requires that the President be a natural born American, which means he had to be born in a US state or territory, embassy or military base.

No, it doesn't.