Date: Thu Nov 06 14:39:14 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: (some answers, maybe) The Pray Fray
At 06:42 AM 11/6/97 0600, you wrote:
Wow, Coach! Sounds like you want me to run a touchdown from the opening kickoff. We haven't agreed on a definition of "religion" yet. So we would surely disagree on my solution (if I had one).
A quickie answer in the government context is "any invocation to a deity." By definition, prayer invokes a deity. Prayer is generally one commonly accepted attribute of all religion, if not the central attribute common to all.
Let me tell you how I see the "religious purpose" charge. Disclaimer: I speak only for myself, giving my personal opinion (although I think my view are generally shared withing the Christian (and I use that term broadly) community. I have a group of friends (the flagpole bunch) who are honest, moral, Christian men (two of them just went to work for SAIC). We have lunch together rather frequently and discuss religion, politics and the economy. I know these men's hearts. I can assure you that they (we) desire to offend anyone, nor do they want to see anyone being offended by a religious practice or expression.
Speaking on a purely personal level, the lack of "desire" or intent to offend does not ameliorate it. You can't be a little bit pregnant, and there is no such thing as de minimus injury when it comes to freedom of (and from) religion. You ask that I simply accept and acknowledge your own personal desire to pray, and I do, DEPENDING on the context and forum. I'll address some of your specifics below, but can you grant me that it might "offend," using that term loosely, in certain contexts? Even just making me uncomfortable should give you pause.
In most contexts I have no right to, and in fact don't, bitch: what you do in your own home; in your own church; in your own private association or gathering; even what you do on a public street and in public buildings, so long as you're doing it in your individual capacity, as opposed to official or governmental. This, we can agree, the first amendment protects. We are only talking about the use of governmental resources by men in their governmental or official capacities, not all the rest. More on this distinction below.
I understand "evangelism" and I understand "prayer." But I really don't feel like I understand "religious purposes" or "promoting religion" as used in cases against religious expression.
I think where the confusion comes up is that the question is "religious expression by whom?" Necessary discussion of a legal fine point here that I should have shared before, but is critical to the analysis: When state officials get sued, they are actually sued in two capacities, a legal fiction that has evolved in order to separate the concept of Rob the man from Rob the Assistant Attorney General. There are historical legal reasons for this fiction (and "fiction" is not a bad word in this context) which evolved as courts tried to deal with various issues of immunity. But I have two legal capacities, official and individual. You can't sue Rob the individual to make him give you a public document that is possessed by him as an Asst. Attorney General. You have to sue him in his official capacity to do that, because Rob the individual doesn't have it unless Rob the official gives it to him. You can't sue Rob the Asst. Attorney General to recover against him in that capacity if he fails to pay his Visa bill, because Rob the official doesn't have a Visa card. You have to sue him in his individual capacity for that. It separates my public persona from my private life. This legal nuance is critical to the discussion.
Where Judge Moore (for argument's sake) is confusing the public is by merging those two personas into one in order to make his arguments. As an individual, he has no right to public office or the robes he wears. As an individual he does not possess the keys to the courtroom, and has no control of what goes on there, as an individual. The only way the preachers get in is through the invitation of the public official. And it is only what he does as a public official that is enjoined by Judge Price's order. Judge Moore's personal right to express his religion is only an issue because he's mixing apples and oranges.
Now, at this point you're probably thinking, "yeah, but still Rob, what's the big deal?" Let's reserve that for separate discussion. To answer your question (somewhat, I hope), what the public official does, using public resources, to encourage, endorse or promote prayer, is, broadly speaking, doing something that has a "religious purpose."
Let me relate a little story that may help you understand what I shall be trying to say. There was once a little boy who lived near a sea port. He dreamed of becoming a captain. When he grew up, he bought himself an old used fishing boat. He proudly exclaimed to his mother, "Now, I am a captain!" His mother lovingly said, "Son, to you, you are a captain. To me, you are a captain. But to a captain, are you a captain?"
It's a good story, but I'm not sure I follow who you're relating it to. The moral of the story is that someone isn't actually what he holds himself out to be unless those who've already accomplished that position say so too, in other words, endorse his professional credentials. Perhaps what you mean is that just because ROB says something has a religious purpose, like prayer, it isn't really religious until those who are praying say it is intended to promote religion. Is that what you're saying? Perhaps you are saying that I, and people like me, are confusing your intent and that if we really knew what you were doing in merely "acknowledging" God (perhaps?) we'd know that you weren't really praying, or didn't have a "religious purpose" and that therefore no one is actually intending to "promote religion."
Now, I may have confused what you were trying to relay, but if I got you right, then there's a fundamental flaw in the approach, which you've probably already seen if you accept that, by definition, prayer is a central attribute, if not defining moment, of religion. Actually, it's the "ceremonial deism" argument used to justify or dispense with the argument that "in God we trust" and other national invocations of God do not run afoul of the constitution. The idea is that ceremonial deism isn't actually prayer or an attribute of religion because those things have actually lost their religious value over time, and are essentially meaningless. The problem with that from a purely logical perspective is, it raises the question, "then why do it at all, if to defend your right to prayer, you must strip away any religious significance to it?" It's logically inconsistent with the argument that individuals should be permitted to "pray" when they're saying that actually their "prayer" is not "religious." It's a distinction without a difference.
So, I may have misconstrued the point of your captain/little boy story, and if so correct me. But if I got it right, let me know.
In terms of evangelism, a prayer at a football game or in a courtroom just don't qualify. So it can't be "promoting religion" as I perceive the term.
First, I assume when we're talking about football games, we're talking about games between public schools, not private schools. Big difference there, but we've never said it. What happens when the government resources or tax dollars are not involved is not at issue. What follows then, from my earlier discussion, is that prayer is by definition an attribute of religion. Therefore religion (not mine) is being interjected into a public event. Whoever is interjecting it, is promoting it. Whoever permits it, tacitly or otherwise, endorses it.
For someone to claim it is, is considered baseless and ridiculous, for those of us who know better.
Now, that may be the question of the definition of the word "religion." Do you accept my definition or assertion that prayer is an expression of religion?
Also, it seems like a giant stretch of the imagination to claim that a coach, principal, or teacher (or even a visiting minister at a football game) is "a government employee using his job for religious purposes."
That's another part of the de minimus argument, to which I reply as an individual and personally, there is no de minimus argument. You would agree that the coach, principal and teacher are all paid with public funds to attend the game, and that they are in a position of authority and disciplinary control over the students, who are required by law to attend school, although maybe not football games. In those positions of authority they are, by my earlier definition, promoting religion when they endorse the visiting minister's prayer by permitting him up there to begin with. And it is no answer to suggest that they don't have to attend football games, because there are those who want to be on the team or the cheerleading squad or otherwise participate as spectators without having to compromise their own religious principals by being subjected to it.
(Now that we are a team, won't feel like I'm aiding and abetting "the enemy" to tell you this.) The use of such ridiculous terms can only be viewed as a baseless attack on Christianity.
It's an attack on Christianity only because certain Christians may be the ones doing it at the moment, and only, I submit, because the "Christians" drew "first blood." But it can just as easily be any other denomination, as in my blackbelt county example. Or what's happening in Israel today.
Really, those kind of expressions are as trite to us as "activist judges" and the like are to you. To be taken seriously, those prone to use such must avoid it, and use more factual and substantive arguments. My feeling is that if you use can use facts and reason, convince me that a prayer at a football game is truly injurious to others, I'd be inclined to stop the practice.
OK, a reasonable request. This in fact is the major stumbling block in communication on the subject. I've tried to address this with numerous examples and hypotheticals. What went on in Pike County is an example of the harm. The hypothetical of the black belt county that decided to go Muslim after a visit from Louis Farrakhan. From your perspective you cannot know what it is like to hear "in Jesus' name we pray..." unless you've walked a mile or two in my shoes as a child. Everything can be going fine and then I'm reminded how I'm an alien in my own country. More on this below.
That side has never made that kind of convincing case. Sorry, but the "embarrassment" or making him feel "uncomfortable" argument is unacceptable. We are all embarrassed or feel uncomfortable from time to time. That is life, and our government doesn't guarantee freedom from embarrassment.
No, it doesn't. But the government doesn't have to be the one that's making me embarrassed and uncomfortable either. And it's much more than that. It's alienation, it's a persistent reminder that I am not one of you. If the other side and I have not convinced you, it's not for want of trying. And much of why I keep the dialog open is precisely to see if I can come up with something that will finally work to "get through." You're a terrific sounding board precisely because you're open to the dialog and earnestly try to understand. There remain, however, some barriers at your end (or inadequacies in expression at mine) that prevent you from realizing the full significance of what is at issue from my end, emotionally and personally.
You know how you said you didn't look Jewish and you didn't make a big deal of being or feeling different/uncomfortable in a group of non Jews? Now would you really be embarrassed at a football game to just stand and look at your shoes while a prayer was being said? Who would know you didn't believe in the prayer or the God to whom it was directed? You'd only be embarrassed if you did or said something to attract attention to yourself. Now if you could stand there quietly and "endure" the prayer, would you have 1) been injured, 2) been embarrassed, 3) felt intimidated, 4) felt coerced to "get saved," or 5) join a particular church or denomination?
Injured by the alienation, the disregard for my own religious beliefs. Injured by the assumption that I can ignore it, when I can't, or when I must "endure" it by pretending as though it does not affect me. Injured by knowing that my tax dollars are being spent to endorse and promote another's religion that I have serious and fundamental problems with. I do not want my children (if I had my own) to go through what I and my sister went through as children. I don't want my nieces to go through it although my sister is preparing them as well as she can to "endure" it. Injured by the idea that if I don't like it, I can lump it, that that's the way the majority feels and it doesn't matter that we are gathered for a secular purpose, but that to participate in the government I pay tribute to, I must subordinate and sacrifice my own feelings and religious beliefs. It is not de minimus.
You would probably say that you could do it without any of the above, but some weaker soul might not. If they are that weak, then it is them that has the problem. We can't live our lives individually or collectively in great fear of someone getting their precious little feelings hurt. It just isn't reality.
Oh, but we can and we should and we must. We are all equal in the eyes of God, but doesn't your suggestion presume that some are more equal than others? We should protect the beliefs and feelings of the weak from the tyranny of the majority. THAT to me is the great promise of this country. By asking me to "endure" it, you seek license to be indifferent to my feelings and beliefs on this intensely personal issue. How do you teach your children that it's OK to be indifferent, but don't be intolerant? The line is too fine.
It is only because the zealots don't know where to stop that it becomes all or none. Every time there's an attempt at accommodation, someone has to push the envelope further, and someone gets hurt. Well, if prayer by a minister at a game is OK, why not the teacher, the principal, the mayor? If they can do that, why not allow them to require everyone to bow their heads? If they can do that, why not require assembly for prayer before school where participation is mandatory (hey, the Jews can ignore it)? If that's ok, why not permit teachers to assign homework on "why Jesus is my personal savior"? If they can do that, why not require proof of religious affiliation before being permitted to participate in other activities? These are real life examples from recent events that cannot be ignored.
Originally, I didn't have a problem with the Ten Commandments. It was the prayer I took issue with. Then Moore made the statement that the commandments weren't there for any historical purpose, but for purely religious reasons -- that we're a Christian nation and that the law in his courtroom came from God. We've already covered that the version of the Ten Commandments he has up there differs from the one in my book. Moore has said he wouldn't invite a non-Christian to give a prayer. And recent events have proved what I've been saying that demagogues don't know where to stop. That is the danger.
No one cares about my feelings when I have to drive by a large billboard advertising the "Boobie Bungalow." (No joke. It is in Elkton, TN.) It is okay for Christians to hear cursing and vulgar language in the public arena and on TV. Note how many more "God d___s" you hear at a football game that "God blesses," yet hearing the name of God in a curse are not offended by it.
That, unfortunately, is the downside to free speech. But it is not an example of government endorsement of religion. What individuals do, even in the public arena, as individuals, is not what the controversy is about. Profanity, pornography, obscenity can be regulated for secular reasons to a large degree without saying it's an accommodation to Christianity. On the other hand, Judge Moore wouldn't be in the courthouse, and the teachers at the game, except that they are there in their official capacities as representatives of the government. It is what they do in their official capacities that is at issue. What they do on their own time or as private citizens is not, never has been, never will be.
It is only when a Christian is using it reverently that results in charges of "religious purpose" or "promoting religion." To one who promotes religion, prayer at a ballgame certainly is not that.
I'm not sure I understand either sentence. What significance is it that it is done "reverently"? That's not something you get extra points for just because it's sincere. Your sincerity has never been at issue, nor the question whether you intend harmful consequences. In legal terms, this is a "strict liability" issue. Intent is irrelevant. The question is whether you can honestly walk a mile in the shoes of my children. Can you teach my children that when the government prays, it is merely being indifferent to their beliefs, and that by requiring them to silently "endure" it, that to blithely disregard the sincerity of their own feelings of alienation that is not intolerant?
As to your second sentence are you saying that you are "one who promotes religion" and that therefore you can say with certitude that prayer at the football game is not? If so, then I do understand your captain/little boy analogy. And in that sense I respectfully disagree with it for reasons I've addressed earlier. To pray is to exercise religion. When the government prays it promotes.
Wow! That was an excessively long explanation to tell you why I would have trouble with my "assignment." Please feel free to withhold the "legal" argument to the above. Personal opinions and feelings to help us get closer to a common understanding of such terms would be great, now or later as we get more use to working together.
I've tried not to make it legal except to put the issues in context for us. What I've relayed are indeed personal. It just so happens to coincide with a lot of modern jurisprudence on the subject, although legally, in some areas I would, from a personal perspective, do things differently. For example, you won't like this, but I think the ceremonial deism arguments are legally disingenuous. I think "in God We Trust" and those other invocations to God should go in their entirety. Because it is logically inconsistent to argue we can keep those things only because they've lost any religious significance.
On the other hand, I'd like government to be able to acknowledge as spirituality the concept that the whole is greater than the sum of the parts, that there may be "higher power," or "God as we understand him," terms from 12 step programs like AA, that is greater than all of us, but that it may have many different meanings to different individuals. Right now, because of the tendency of man toward demagoguery though, it looks like all or none is the only solution. But I'm open.
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