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Friday, October 02, 2009

Legislative Prayer in the New York Times

Interesting article here about a controversy this week in Lodi.  Professor Choper's legal analysis seems right on to me.  It's clear that nondenominational prayers are okay; it’s unclear whether overly denominational prayers cross the constitutional line (and there's related uncertainty, of course, about what overly denominational might mean).

Lodi's resolution of the problem maybe illustrates a developing trend in legislative prayer.  Under its new prayer policy, even nonreligious people can offer an invocation.  That change somewhat accommodates the nonreligious, but it also makes the speech look more private and thus potentially more immune from the Establishment Clause.  Of course, whether privatization is real or just a sham has been a theme of the Establishment Clause going back at least to Stone v. Graham, and is the heart of the issue in Salazar v. Buono to be argued in the Supreme Court next week.  Shameless plug: Nelson Tebbe has a really thoughtful short piece addressing the issue here.)

While the public forum idea has worked in other contexts, I have my doubts about it working for legislative prayer.  Much will depend on whether local governments will really treat all speech equally.  Cobb County acted nobly by allowing an atheist to give the opening invocation recently, although the chair afterward called his comments “repugnant and insulting.” 

Finally, the NYT piece doesn't quite capture the whole of the controversy or its most incendiary parts. If you want that, go to an earlier article in the local paper.  Here's an aspect of the issue unmentioned by the Times:

Council members might soon see their names on billboards under the words "Against Jesus" and "For Jesus" depending on what the council decides Wednesday night.

The council received a letter from Chaplain Gordon James Klingenschmitt, the founder of the Colorado-based national group The Pray In Jesus Name Project, saying he will purchase billboards on Interstate 5 and Highway 99 for one year if the council approves a policy that gets rid of the prayer or forbids religious leaders from saying "Jesus."

"If you vote the wrong way, or silence prayers or leave in place the current policy that suddenly enforces censorship of Jesus' name from prayers (as never before), you should be aware of our plan ... " Klingenschmitt wrote in the letter that the city clerk's office received Sept. 22. . . . The money to purchase the billboards will come from the $10,000 in donations Klingenschmitt has pledged to provide the city help in court if Lodi is sued because it continues to allow Jesus' name to be said during prayers, he said.

Posted by Chris Lund on October 2, 2009 at 01:14 PM | Permalink


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