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[Richard Painter, guest-blogging, March 27, 2009 at 12:56pm] Trackbacks
Religion and Government Ethics:

For comprehensive discussion of the First Bank of the United States, a leading authority is Mark R. Killenbeck, M'Culloch v. Maryland: Securing a Nation (2006) (Killenbeck has the spelling correct). The book is reviewed by H. Robert Baker in http://legalhistoryblog.blogspot.com/2007/07/baker-reviews-killenbeck-mculloch-v.html

Now that I have inflamed nearly everyone by suggesting that partisan political activity be toned down at the White House, I will turn to religion.

I start with the radical suggestion that the best place for free exercise of religion in Washington is St. John's Church across the street from the White House, or any other church, synagogue, mosque, temple or house of worship. Bringing religion directly into the work of the White House or another government entity can only cause trouble.

I do not address this as a matter of constitutional law, or theology, which I leave to others. I am saying that government entanglement with religion is difficult from a government ethics lawyer's perspective. The more entanglement there is, the more difficulty there is. Combine religion with partisan political activity, as many government officials now do, and the ethics lawyer confronts a three way mix of Hatch Act regulations, the Establishment Clause and government ethics regulations. I pointed out in an earlier post that ethics problems often begin when someone thinks he or she can wear two hats instead of one. Try three.

We have throughout history had references to religious values by persons making government policy, perhaps even more so than references to civic values of political parties. This is not the problem. Appropriate boundaries are difficult to draw, but to the extent actual government functions instead of political rhetoric test the limits of those boundaries, government ethics and other legal questions move to the fore.

Entirely apart from Establishment Clause issues, a lawyer must be mindful of Office of Government Ethics regulations that prohibit government employees from using their office to endorse a particular organization, such as a particular church. There are also prohibitions on use of public office for the private gain of an individual or an organization.

Government meetings with religious leaders, like meetings with union leaders and corporate leaders, are appropriate. Government meetings with religious leaders that are used to promote fundraising by a non-government organization are, however, inappropriate use of public office for private gain. A White House staff member's speech to members of a religious organization can be an official speech, but a White House staff member should actively participate in a sectarian religious service only in a personal capacity not an official capacity (giving an official speech and then passively sitting in on a sectarian service afterwards is in the gray area). This is also an area in which a more flexible standard is applied to the President and Vice President and to ceremonial functions where one of them is present such as a memorial service.

One time I recommended that a particular religious leader be invited into the White House. I was concerned that press coverage suggested that the White House relied too much on politically active evangelical leaders and at least twice thought I saw James Dobson hanging around the West Wing Lobby. The Office of Faith Based Initiatives was intended to reach out to a broad range of religious leaders, which it was doing, but having more high profile leaders from different perspectives could always help. I had met the retired Archbishop of Canterbury, George Carey, at a social function and I had heard that he was in Washington for much of the year. I suggested that the White House Faith Based Office invite him in for a meeting, which it did

The meeting was supposed to be official and it was informative, at least from a international comparative perspective, for assessing a justification for having a White House Faith Based Office to begin with. The meeting was to inform us about how much churches in the Anglican Communion do or do not require support from governments around the world to conduct their social programs for the poor (the answer we learned was that they do not get much government support for these programs and the best thing governments can do is not get in the way)

At the end of the meeting a White House staff member suggested we end in prayer. Others seemed to consent. Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity. He was assured that U.S. government employees were free to pray in a personal capacity. The situation was confusing, however, because he had been told that the purpose of the meeting was official.

There we were, I as the White House ethics lawyer at what everyone had been told was an official meeting, and the Archbishop of Canterbury was calling us on questions of separation of church and state. True, the meeting could be personal instead of official if people wanted it that way. I didn't see how it could be both.

The meeting became unofficial. With the last "amen" was the executive privilege, if there ever was any, for the entire meeting waived? Alternatively, were there two meetings -- an official meeting and a prayer meeting -- instead of one? This was a muddle indeed.

Admittedly, many of us bring personal views, and sometimes our religious faith, to this discussion. I belong to a church known for a formal mode of worship that does not spill over easily into the workplace (more recently Episcopalians have also been known for ignoring the world's problems while engaging in a loud argument between those who believe the Bishop of New Hampshire is not qualified for office and those who believe that the personal life of the Bishop of New Hampshire is the business of the Bishop of New Hampshire). Perhaps it is my own bias, but I am persuaded by the analysis of religion and politics in a book by an Episcopal clergyman who was also a United States Senator. See John Danforth, Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together (2006)

Some conduct in this area is perfectly legal; it is just embarrassing. An example was a series of "Justice Sundays" in 2005 during which U.S. Senators and other politicians conducted telecasts from churches urging an end to filibusters and other tactics Democrats were using to delay Senate confirmation of nominees to the federal bench (the Eleventh Commandment "thou shalt not filibuster" is of greater or lesser theological importance depending on who controls the Senate). Such electioneering would not occur in the vast majority of churches, synagogues, mosques and other places of worship. Many Americans believe the Justice Department and Senate hearing rooms are more appropriate places to discuss these issues. Because so many people found it distasteful, "Justice Sunday" may have backfired and encumbered the Administration's ability to get some qualified judicial nominees confirmed.

I am not suggesting that more rules will address this problem; rules often make things worse. I am suggesting that voluntary restraint by government officials who stand well clear of legal limits would restore public trust in government, and in organized religion. It would also make a government ethics lawyer's life easier.

We seem to have reached a point where the manner in which one Republican (Governor Palin) says she does not enjoy working with certain other Republicans (McCain staffers) is to say she does not want to pray with them. We have also reached the point where such a remark, instead of being ignored, is viewed as the highest form of insult and a cause for yet more Party infighting. If we keep carrying on in this way, I hope someone is praying for the future of the Republican Party.

As Republicans conduct what amounts to a factionalized prayer meeting, the Country is under one-party rule. The Government owns more and more of our economy and asserts more power over our private lives. Churches for the time being remain independent, but one wonders what will happen when churches, bankrupted by litigation, discover that they too need a bailout and that only one small clause of the Constitution stands in the way.

Sk (mail):
"At the end of the meeting a White House staff member suggested we end in prayer. Others seemed to consent. Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity. He was assured that U.S. government employees were free to pray in a personal capacity. The situation was confusing, however, because he had been told that the purpose of the meeting was official.

There we were, I as the White House ethics lawyer at what everyone had been told was an official meeting, and the Archbishop of Canterbury was calling us on questions of separation of church and state. True, the meeting could be personal instead of official if people wanted it that way. I didn't see how it could be both.

The meeting became unofficial. With the last "amen" was the executive privilege, if there ever was any, for the entire meeting waived? Alternatively, were there two meetings -- an official meeting and a prayer meeting -- instead of one? This was a muddle indeed."

This anecdote does the exact opposite to me that you probably want or expect. Rather than illustrating the conundrums that ethics lawyers have to face, I find it illustrates the absurdity that lawyers force the rest of us to face. A group of people, in a private setting (by private, I mean one in which the public is not participating or allowed-not in terms of the private sector) who want to pray, are stopped from doing so by a clergyman, and then have to create the facade of 'two meetings' in order to gloss over an imagined ethical problem? It could easily be a Monty Python sketch, with characters bickering over ever-expanding minutiae ('but wait! Can we really hold a 'private meeting' with the Seal of the President facing the room? Quick, somebody turn that thing around!' 'But wait! I'm still wearing my White House ID card!?' and so on).

So you read it as a message to not pray. I read it as a message to let human beings be human beings. In other words, the muddle was entirely imaginary. People talked business, then people wanted to pray. Only the clergyman, interjecting his disfavor (!?!?), and the ethics lawyer, interjecting his concern that people wanted to pray (instead of, I suppose, talk Redskins or tell dirty jokes), create a dilemma.

Sk
3.27.2009 1:32pm
David Drake:
Malthus--

So is your point that the Pledge of Allegiance is unconstitutional under the Establishment Clause even if it didn't have a reference to God?


BTW--"Americans" is spelled with a "c." I presume this was a typo.
3.27.2009 1:47pm
Le Messurier (mail):

Rather than illustrating the conundrums that ethics lawyers have to face, I find it illustrates the absurdity that lawyers force the rest of us to face.


SK your point is spot on. But the problem is hardly one of just ethics. IMO we in the real world recognize and are repelled by the absurdity of being constrained in almost every aspect by laws; where every action we take, no matter how benign, must be measured against its legal risk. Lawyers, on the other hand, take the absurdities for granted, and with approval. They instinctively fail to comprehend the big-picture stupidity of a society over lawyered and over lawed. If it were otherwise we wouldn't have such conundrums as Painter describes.
3.27.2009 1:58pm
PatHMV (mail) (www):
I agree with Sk. This is the sort of problem that exists only in the minds of some lawyers, and your reaction to it explains the frustration that religious-minded folks have with attempts to remove all religious aspects to public life in any form.

As Sk notes, if you treat religion differently from, say, telling a dirty joke or talking about the football game, then you are hostile to it. If one is in a circumstance where one can talk about "unofficial" business like the big game, then to say that one cannot during the same time period pray or discuss religious topics, then you have become intolerant of and hostile to religious expression.

In perhaps more legal language, you have engaged in viewpoint-based discrimination against speech. One type of speech is deemed acceptable (idle chit-chat), while another type of speech is forbidden, simply because of the religious viewpoint of the latter.
3.27.2009 2:03pm
DangerMouse:
As Sk notes, if you treat religion differently from, say, telling a dirty joke or talking about the football game, then you are hostile to it. If one is in a circumstance where one can talk about "unofficial" business like the big game, then to say that one cannot during the same time period pray or discuss religious topics, then you have become intolerant of and hostile to religious expression.

In perhaps more legal language, you have engaged in viewpoint-based discrimination against speech. One type of speech is deemed acceptable (idle chit-chat), while another type of speech is forbidden, simply because of the religious viewpoint of the latter.


Bingo. Unfortunately, many people are extremely hostile towards religion and often engage in that sort of viewpoint discrimination.
3.27.2009 2:14pm
ArthurKirkland:
We do not know that "only the clergyman and the lawyer" objected to the prayer. They might have been the only ones willing to mention that inviting a roomful of people, conducting an official meeting on public property, to pray jointly is boorish, similar to a government employee announcing at the end of the meeting, 'hey, now that the business has been concluded, my daughter's field hockey team is raising money for a trip to Ontario, and I am selling raffle tickets. They're $100 apiece, winner gets $10,000. I don't want to be greedy or take advantage of the situation, so can I just put each of you down for one?"
3.27.2009 2:15pm
ruuffles (mail) (www):

if you treat religion differently from, say, telling a dirty joke or talking about the football game, then you are hostile to it.

Tell me where the constitution mentions football or dirty jokes.
3.27.2009 2:27pm
Putting Two and Two...:
Would all of you join so enthusiastically in, say, a Druid prayer?
3.27.2009 2:30pm
PatHMV (mail) (www):
ArthurKirkland... Prof. Painter did frame his objection as being based on "boorishness." No, he said that this "made his life" as a government ethics lawyer "more difficult." It only makes his life more difficult if it raises some legal quandary, about which he would have to provide advice and guidance.

While I'm not terribly fond of seeing such routine prayers in government meetings on a large scale, I don't see any legal difficulties, nor practical difficulties, in encountering such prayers at a meeting between a bishop and the office of faith-based initiatives. And I think that there are those in the Republican Party who are becoming hostile not just to extreme religious zealots but to any introduction of religion into public life at all, at least beyond the most traditional of opening prayers, etc.

When I worked for our state's governor a number of years ago, he hosted a bible study breakfast at the mansion once a week. It was open to all staffers, from the mail-room on up. Some people attended, others didn't. Those attending obtained no benefit other than the spiritual guidance and relief often provided; those who chose not to attend suffered no adverse actions. There's absolutely nothing wrong with that.

And there's nothing wrong with Sarah Palin not praying with some group of people, either... especially people who were as hostile to her as some of the McCain staff seemed to be.
3.27.2009 2:33pm
PatHMV (mail) (www):
ruuffles... Right there in the First Amendment where it guarantees freedom of speech (which prohibits discrimination against expression based on the viewpoint expressed, among other things). It protects the right to talk about football, and tell dirty jokes ... and to pray. The ONLY constitutional restriction against religion is to say that government may not "establish" a religion. A prayer in an office is not an establishment of a state religion.
3.27.2009 2:36pm
Putting Two and Two...:
These comparisons to football and dirty jokes are odd.

It was a running joke in my office that I knew nothing about sports. When the subject of football comes up, I've been known to ask, "is that the one with the pointy ball?". Would a similar joke about your Lord be OK?
3.27.2009 2:45pm
Bama 1L:
I'm a religious person. My religion--at least the way I understand it--requires that I not pray for certain things or with certain people. I really hope that the government never puts me or someone who shares my beliefs in a position where I have to say, "Sorry, I can't pray with you," to the people with whom I work.
3.27.2009 2:51pm
Bob from Ohio (mail):
Was too much religion to blame for the GOP's defeats in 1964 and 1976? Look at the numbers in the House and Senate for both years and compare it to this year. Somehow the GOP came back.

You are seriously warping Governor Palin's recent statement too.
3.27.2009 2:53pm
Sk (mail):
Le Messiuer:
"But the problem is hardly one of just ethics. IMO we in the real world recognize and are repelled by the absurdity of being constrained in almost every aspect by laws; where every action we take, no matter how benign, must be measured against its legal risk."

I agree with your assessment, but its not just legal burdens that are included. I think of it as 'procedural minutiae' that anyone who works in a big organization, and has to sit through (and roll their eyes at) has to endure. If you have ever seen 'Flight of the Concords' there is a recurring joke when the band manager holds a band meeting: he goes through a roll call to start the meeting (even though there are a total of 3 people in the room, and they are sitting perhaps 3 feet apart-the roll call is unnecessary because it is self-evident. He starts the roll call by saying his own name and responding 'present').
Before a group of people willingly pray with each other, they have to debate whether their meeting is a personal or official meeting? And consult the government ethics lawyer? And this 'procedural minutiae' is motivated by concerns on the part of the…clergyman?!?!?! Seriously, it's the setup for a comedy sketch.

Putting two and two, and ArthurKirkland: You would raise legitimate questions in a hypothetical situation (whether someone is being compelled to pray, or whether someone would really pray to a religion that they don't believe in-like Druidism).
But the anecdote isn't that hypothetical situation. There was no indication in the story that people were being compelled to pray against their will, and no indication that the clergyman's or the lawyer's concerns were motivated by silent, unwilling participants. Rather, they were concerned with the praying itself-not its popularity.

Sk
3.27.2009 2:58pm
Assistant Village Idiot (mail) (www):
"We have throughout history had references to religious values..." well, references to God, more frequently. It helps to remain clear about these things. Most religious references by American public figures reflect the least common denominator of the majority religion. That has worked out as a practical matter as a deism with some generic Christian flavoring.

The rub comes because most people regard this as so bland and innocuous as to be inoffensive and not worth mentioning, but a significant minority with no religion or a different religion regard this civil deism as uncomfortably specific. To resolve this conflict we seek clear principles, but the best we can hope for are cobbled-together arrangements which no one finds satisfactory.
3.27.2009 3:23pm
ArthurKirkland:
I believe it would be improper to announce to subordinates shortly after assuming control of a government office, "Hey, I was raised a Baptist, but as I have aged I have learned that my parents were wrong about everything else, so I question whether they were right about the church. I've started reading the Koran, and have been very excited by what I have found. I want to share it with you, believe it has helped me and I want to share my journey with you. So, no pressure, but I've decided to schedule a Koran study session every Tuesday morning, 30 minutes before we start work. You are all invited. Again, no obligation, but I'll hope to see you there."

Or, if at the end of a meeting of constituents and government officials in the same office, I said, "OK, everyone, let's just have a small prayer to mark the end of our discussion. With all the sadness and hardship in our work, and worship of the supernatural, I think this prayer is called for." At which point I demonstrate that we should all look upward, hands outstretched, palms toward the sky, and begin to recite a prayer from an obscure religion that worships the sun and begs forgiveness with respect to "those who ignore our natural world and seek solace in the supernatural."

If there is a legal distinction between those activities and a heads-bowed, eyes-closed prayer to "God our Father," it eludes me. I don't see a moral or practical distinction, either. Mostly, bad manners.
3.27.2009 4:04pm
wfjag:
ArthurKirkland - One tiny distinction between your hypo and the situation that Painter described - although a prayer at the end of an official function could easily lead to a purple-prose editorial condemnation in the NYT or WaPo if learned of, unlike your hypo it's not either clearly prohibited by government ethics regulations or possibly a criminal act (extortion). If you believe that Painter described either a potential ethics or legal violation, then please advise on whether Pres. Obama, today, and in prior speeches, when he concludes or includes words like "God Bless America" or "God Bless the Troops", is violating some ethical standard, and cite the standard who believe was violated. Today, while announcing his initiative for Afghanistan, and with senior officials standing behind him (obviously an official function) he didn't hestitate to invoke "God", and so, the function was at least as official as the one Painter described -- and as it was broadcast on national TV, was public in every sense of the word. As I see no ethical or legal problem with the President's remarks, I see no ethical or legal problem described by Painter. If you disagree, educate me.

(Yes, I agree with SK. I don't see there being an ethics or legal problem if people want to pray at the end of a meeting and ask others to join them -- the 1st Amendment does permit the free exercise of religion. What I take from Painter's example is fear of criticism by certain segments in the Press or by political opponents being disguised as an ethical problem.).
3.27.2009 4:12pm
Eric Rasmusen (mail) (www):
I, too, see some lawyerly blindness here. Most of us get a lot more nervous about lawyers hanging around the White House than clergymen. A clergyman might pray that I be damned (though I can't think of any real ones that would actually), but an ethics lawyer might take away my money, my job, or my liberty, using the power of the state.

Similarly, it's a lot more threatening when someone says, "We all believe in affirmative action, don't we--- since it's it's racist not to and you're all forbidden by law to discriminate" than when someone says, "We all believe in the supremacy of the Pope, don't we-- since if you don't, you're not a Roman Catholic." When people call their faith-held belief "ethics" they're a lot more dangerous than when they call them "religion".
3.27.2009 4:12pm
CJColucci:
Aren't all public ceremonies such as funerals, weddings, ground-zero commemorations and moments of silence religious activities?

No.
3.27.2009 4:17pm
Putting Two and Two...:
This thing called "lawyerly blindness" must be contagious if the Archibishop of Canterbury was similarly afflicted.
3.27.2009 4:19pm
Putting Two and Two...:

A clergyman might pray that I be damned (though I can't think of any real ones that would actually)


Most of the clergymen who hung around the Bush White House didn't need to pray that people like me be damned. They already knew we are. With certainty. Not that that would reflect on their positions vis-a-vis my rights or anything...
3.27.2009 4:24pm
Eric Rasmusen (mail) (www):
"At the end of the meeting a White House staff member suggested we end in prayer. Others seemed to consent. Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity."

This is the complaint that many Christians have about English bishops, actually: that they are noticeably less enthusiastic about God and than ordinary members and noticeably friendlier towards the secular establishment. You don't get to be a bishop by being religious, and there is some question as to whether or not it's an actual handicap. (It's open to question because believers count at least as interest group in the Church of England, and a group that supplies a lot of the fund, so they have to be tossed a bone now and then even if the church establishment would rather have a more purely social-policy-minded bench of bishops.)
3.27.2009 4:24pm
PatHMV (mail) (www):
The Archbishop of Canterbury was, I think, afflicted more with pusillanimity rather than "lawyerly blindness."

Assuming that this was Rowan Williams...
3.27.2009 4:28pm
ArthurKirkland:
Ethics v. religion. Which is more dangerous? Perhaps stacking bodies of victims over the centuries might inform the discussion.

Of course, the exercise might be more "piling" than "stacking," because I doubt a stack of the requisite magnitude would be stable.
3.27.2009 4:33pm
DangerMouse:
If there is a legal distinction between those activities and a heads-bowed, eyes-closed prayer to "God our Father," it eludes me. I don't see a moral or practical distinction, either. Mostly, bad manners.

I don't see a distinction at all, and I don't see why anyone who worships the Sun would have a legal or ethical obligation to refrain from that sort of talk, if other non-official talk is permitted as well.
3.27.2009 5:00pm
dearieme:
"Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity."

"This is the complaint that many Christians have about English bishops, actually....": well it's not a complaint that this Briton has against Carey. To most Britons what was suggested would seem bloody rude, potentially
pressuring people to pray who did not wish to. Hats off to Carey for his good manners and wisdom, and, of course, his caution about offending American church-and-state dogma. (It's a dogma of which I happen to approve, but that's not my point.)
3.27.2009 5:19pm
PatHMV (mail) (www):
AK, as long as you'll accept all the bodies resulting from Lenin, Stalin, Pol Pot, and Chairman Mao on the "ethics" stack, I guarantee you religion will have the smallest stack by several orders of magnitude.

DangerMouse... exactly!
3.27.2009 5:19pm
PlugInMonster:
Until we get tort reform(yum torts), we will continue to see easily filed lawsuits against individuals and companies wrecking havoc on our country.
3.27.2009 5:31pm
HeScreams:
PatHMV:

Right there in the First Amendment where it guarantees freedom of speech (which prohibits discrimination against expression based on the viewpoint expressed, among other things). It protects the right to talk about football, and tell dirty jokes ... and to pray.


I'm with ruuffles: I find it interesting that you're willing to claim protection for government staffers at an official meeting under the Free Speech Clause, while simultaneously ignoring the Establishment Clause.

At the risk of stating the obvious: The FSC applies to private citizens acting in their private capacity. Govt. staffers in their govt. capacity do not enjoy free speech. The government is not allowed to show preference for a religion (or even for religion); these staffers in their official capacity are government. The Bishop and Mr. Painter were right to try to draw a distinction.

The analogy to football is inapt; there is no Sports Establishment Clause enjoining govt. from preferring football to baseball.
3.27.2009 5:33pm
PatHMV (mail) (www):
dearieme.... I would think that a polite guest would assume that if the leader of one's host group made the suggestion, that he or she would be in the best position to know whether the request would offend anybody present. If it was rude to assume that the leader of the Church of England might wish to pray, well, that's just odd. Given that the Church of England authorities seem somewhat antagonistic towards Western culture, ideals, and religions these days (even suggesting that Sharia law ought perhaps be applied in some cases in England involving Muslims), perhaps you are correct, and it was rude of the WH hosts to assume that an Archbishop might wish to pray.
3.27.2009 5:33pm
CJColucci:
I would think that a polite guest would assume that if the leader of one's host group made the suggestion, that he or she would be in the best position to know whether the request would offend anybody present.

A polite guest might assume that a group leader would know whether a request would be offensive, but a sentient guest would know better than to assume that the group leader would care.
3.27.2009 5:42pm
PatHMV (mail) (www):
HeScreams... I didn't "ignore" the Establishment Clause. I discussed it. Do you take the position that any time a government employee prays in a group while "on the clock," that the government has established a religion?

Read as you and others try to read it, the Establishment Clause is in fact HOSTILE to religion. It allows government to sanction any sort of moral or ethical beliefs and ideologies EXCEPT religious ones.

What is the fundamental difference between, say, all participants in a meeting jointly reciting a passage from Emmanuel Kant and all reciting a passage from St. Thomas Aquinas?

You are, of course, correct that government staffers do not fully enjoy their First Amendment freedoms while on the clock. They can be restricted from promoting political or other ideas to their customers and clients, for example. But as long as government doesn't actually mandate that anybody pray, there's nothing in the Constitution which says "thou shalt not pray while on the public clock."

Why are you so hostile to religion and not other forms of philosophy?
3.27.2009 5:42pm
Desiderius:
"We seem to have reached a point where the manner in which one Republican (Governor Palin) says she does not enjoy working with certain other Republicans (McCain staffers) is to say she does not want to pray with them."

Link?

Occam's Razor would suggest it had more to do with the outrageous (and inaccurate) things that were being leaked to the press behind her back.
3.27.2009 5:46pm
HeScreams:
PatHMV:

"Hostility" is a strong word for it.

I can't tell if you're making a normative or descriptive case. Are you saying that the EC doesn't constrain the behavior of govt. officials, or that it shouldn't? If it doesn't, than what does it do? If it shouldn't, you need to propose and amendment. Good luck.


Read as you and others try to read it, the Establishment Clause is in fact HOSTILE to religion.


I don't read it as hostile to religion; but it is hostile to govt. -- and therefore govt. officials acting in their official capacity-- favoring (a) religion. I think that's the correct reading, and the courts mostly agree. I'm making a descriptive case, and just because you don't like it doesn't make it any less real.

The EC does more than say "govt. may not mandate that anybody pray." There are other ways to favor a religion beyond mandating that people adhere.

But you imply there's another way to read the EC... so exactly how would you read it?

On a personal note, I'm only hostile to those that are hostile themselves. And I've never met a hostile Kantian.
3.27.2009 6:00pm
ArthurKirkland:
Do Jews ever pray "Send us the Messiah soon, dear Lord, because mankind has been lost without him for thousands of years, and some have even mistakenly believed the Messiah has already arrived?" A couple of prominent public prayers along that line might cure Christians of their taste for prayer by government officials as government officials.
3.27.2009 6:38pm
dearieme:
"I would think that a polite guest would assume that if the leader of one's host group made the suggestion, that he or she would be in the best position to know whether the request would offend anybody present." Only if the polite guest were innocent of all knowledge of mankind.
3.27.2009 7:26pm
Patrick who once studied Con in Oz ergo is an expert :) (mail):
FWIW, and it is not very apposite, Australia has basically exactly the same establishment clause (in fact, we copied yours) but in over a 100 years it has suscited approximately three cases and nil passion.

Yet we only recently had as our formal (read notional) represtentative of the head of state an Anglican leader of some kind. And the Federal government subsidisies Catholic Schools as well as ecumenical education in public schools.

A question of emphasis, I guess.
3.27.2009 7:37pm
einhverfr (mail) (www):
Huh. I didn't read it as the ethics lawyer objecting to the prayer at all, but rather expressing the confusion surrounding the aftermath.

As for the Druid prayer, sure, why not? How about a recitation of the Runattals Thatr Odhins?
3.27.2009 7:47pm
Tatil:

When I worked for our state's governor a number of years ago, he hosted a bible study breakfast at the mansion once a week. It was open to all staffers, from the mail-room on up. Some people attended, others didn't. Those attending obtained no benefit other than the spiritual guidance and relief often provided; those who chose not to attend suffered no adverse actions. There's absolutely nothing wrong with that.

If as you say, there was no pressure to attend and nobody who did not attend was discriminated, I guess that is not much different than the governor throwing a super bowl party. However, I've lived in places where this sort of invitation came with quite a bit of pressure to attend and lead to becoming an "outsider" with promotions denied to those who did not attend. Thus, I am leery of these prayer events, especially if they are being championed by the top dog in any office.
3.27.2009 7:53pm
HeScreams:
Another take, for sk and PatHMV: Imagine that you're one of the officials in that meeting. You know that you're acting on behalf of all the citizens of the United States, Protestant and Catholic, Muslim and Jew, believer and non-believer. You know that the constitution forbids establishment, and that some people worry that prayer in a govt meeting can have the appearance of establishment.

So, why not wait? Wait till you get home, wait until later, or at very least, as the Bishop and Mr. Painter suggest, wait until someone says, "with the official business out of the way, lets close the meeting and move onto unofficial stuff." What would be the harm in that? Why must the EC be read strictly to allow you to pray while you're acting in an official capacity? Why not read it more broadly, or at least gracefully acknowledge that some other people[1] do, and err on the side of reassuring the people that their government doesn't favor religion, or the religious?

Derived from that last point, a normative take on the EC: The EC should be read as preventing government officials acting in their official capacity from performing religious acts. Why? Because a govt official should act in ways that give all her constituents confidence that they are well represented by the official.

One way to do that would be to share religion with the constituents; but you can't possibly share religion with all your 300 million constituents, because with near-certainty at least 2 constituents share mutually exclusive religious views.

The only other possibility is to set aside --as much as possible-- actions that appear to show your preference for one religion, and act in a completely secular way in all official actions. This is one of the main purposes for the separation of church and state.

This is why the football analogy is inapt: a constituent can still believe that a Steelers fan can make policies that treat all people fairly, without favoring Steelers fans and disfavoring Dodgers fans[2]. But we've all experienced situations where we felt people of a different religion were unable to understand our point of view; and we don't feel well represented by people who don't understand us. So, as an official, the ability to defer your personal sectarian actions demonstrates an ability to fairly represent people of all creeds, while the desire to mix the sectarian and the official creates doubt.

[1] I'm being generous here; it's not just some people that read it this way; it's the courts.
[2] Yes, I know. It's a joke; I, too, know very little about football.
3.27.2009 8:07pm
Bama 1L:
Why are you so hostile to religion and not other forms of philosophy?

Am I the only person who doesn't like religion being reduced to a "form[] of philosophy"?
3.27.2009 8:45pm
byomtov (mail):
one wonders what will happen when churches, bankrupted by litigation,

Do you think churches should somehow be exempt from accountability for their actions?
3.27.2009 9:47pm
ArthurKirkland:
The Catholic Church has established a vivid and unfortunate example in that context.
3.27.2009 9:55pm
Eli Rabett (www):
Did the guy who called for the prayer always do that? How did he react when someone said no?
3.27.2009 10:51pm
Putting Two and Two...:

Am I the only person who doesn't like religion being reduced to a "form[] of philosophy"?


Reduced?
3.27.2009 10:53pm
Cornellian (mail):
But as long as government doesn't actually mandate that anybody pray, there's nothing in the Constitution which says "thou shalt not pray while on the public clock."

I sure hope there's a statute, regulation or policy that prohibits them from doing so. Government employees are being paid to work, not to pray. They can pray on their own dime, not on mine.
3.28.2009 1:53am
Larrya (mail) (www):
I am saying that government entanglement with religion is difficult from a government ethics lawyer's perspective. The more entanglement there is, the more difficulty there is.
True. And so is the mirror. The more a religion gets involved in politics the more difficulty there is.
When I worked for our state's governor a number of years ago, he hosted a bible study breakfast at the mansion once a week. It was open to all staffers, from the mail-room on up. Some people attended, others didn't. Those attending obtained no benefit other than the spiritual guidance and relief often provided; those who chose not to attend suffered no adverse actions. There's absolutely nothing wrong with that.
I wonder what would have happened had a Wiccan staffer offered a similar study. Or, given the last election, an LDS member. Or even a competing Christian denomination.
3.28.2009 1:54am
Greg Q (mail) (www):
I belong to a church known for a formal mode of worship that does not spill over easily into the workplace (more recently Episcopalians have also been known for ignoring the world's problems while engaging in a loud argument between those who believe the Bishop of New Hampshire is not qualified for office and those who believe that the personal life of the Bishop of New Hampshire is the business of the Bishop of New Hampshire).

If the Bishop of New Hampshire was routinely engaging in sex with 18 - 20 year old female members of his congregation, would you consider that "actions disqualifying him from his office"? Or would you hold that "the personal life of the Bishop of New Hampshire is [solely] the business of the Bishop of New Hampshire"? How about if he had both a wife and a mistress, and made a habit of bring the mistress to public events? How about if he divorced his wife of 25 years so he could marry a 22 year old hottie?

In short, do you really not understand how fatuously stupid and flamingly dishonest your characterization of the dispute is?

Narrowly, the dispute is about whether or no the US Episcopalian Church should honor the Church's long standing rules against homosexual behavior. more broadly, it is a dispute between those people who believe that the Episcopalian Church ought to stand for something, and those who think it should be a social club with regular (albeit poorly attended) Sunday meetings.

Should your dishonest characterization of the situation be taken as an admission that you don't believe there are good arguments for your side?
3.28.2009 6:49pm
ChrisTS (mail):
Arthur Kirkland: I cannot remember when I last proclaimed you a god among men, but you deserve to have it said again.

On the other hand, I do think HeScreams merits a wins-the-thread nomination for "And I've never met a hostile Kantian." It would be tough to universalize a maxim that all rational beings ought always to be hostile to one another.

Perhaps oddly, for a philosopher, I also appreciate Bama1L's question, "Am I the only person who doesn't like religion being reduced to a "form of philosophy?" I think this gets to something important about religion and state neutrality.

For most people, religion is not like football - much less like dirty jokes. I'm a non-theist, but I understand that people who have strong religious commitments regard them as important in their lives and to their identities in ways that being a football fan or a consummate teller of jokes just cannot be. And, for many of us non-religionists who live in this country, in particular, religion is also not a like interest in sports or humor … or gardening. It is cathected. It may be cathected positively or negatively or simply in a kind of 'hot potato' way.

I don't understand why religionists would want their faith reduce to a mere 'interest' such as a hobby or sports, and I reject the claim that the rest of us should pretend it is comparable to such interests. Religion and non-religion are afforded a special place in the Constitution precisely because these are important matters, the kind of matters over which people go to war, persecute one another, and tear apart nations.

I would be very uncomfortable if someone ended a professional meeting with a suggestion that we all pray. I don't pray, and I do not want to be put in the position of either announcing that fact or pretending to pray. I take it that Arthur's examples of Druidic or Sun-Worshipping prayers in an official setting are intended to bring this discomfort home to those who assume that their religious perspective will always be the one taken by peers and colleagues. Try this under the Categorical Imperative: "Any person in any situation may call upon the others present to pray to whatever entity the caller chooses -- and the others may not be offended."

I didn't think that would go down well.
3.28.2009 6:52pm
John D (mail):
If ever called upon to pray while I am on the clock, I will start singing the shmah. Loudly.
3.29.2009 3:41am
sdfsdf (mail):
John D.-- that's a fine idea. You do realize, don't you, that all the rightwing Christians in the room will cheer you for doing that, after you translate it and they know they agree with you?

"Hear, O Israel: Jehovah our God is one Jehovah: 5 and thou shalt love Jehovah thy God with all thy heart, and with all thy soul, and with all thy might. 6 And these words, which I command thee this day, shall be upon thy heart; 7 and thou shalt teach them diligently unto thy children, and shalt talk of them when thou sittest in thy house, and when thou walkest by the way, and when thou liest down, and when thou risest up. 8 And thou shalt bind them for a sign upon thy hand, and they shall be for frontlets between thine eyes. 9 And thou shalt write them upon the door-posts of thy house, and upon thy gates."

That prayer is strongly supportive of religion at the workplace, too:


"and shalt talk of them when thou sittest in thy house, and when thou walkest by the way, and when thou liest down, and when thou risest up."
3.29.2009 9:59pm
Losantiville:
So I skip a day or two and miss a major chance for Anglican Disputation...

a formal mode of worship that does not spill over easily into the workplace

Depends how you do it. The BCP has numerous prayers for all occasions including daily services (Morning &Evening Prayer) meant for home (or office) use. If one chooses to pray the Daily Office: Vespers, Compline, Matins, Prime, Terce, Sext, None you can outdo Muslims with 7 prayer sessions. Terce, Sext, and None occur during ordinary work hours.

Bishop of New Hampshire is not qualified for office

Perhaps if the left-wing leadership of TEC had not seen fit to elect Victoria Imogene Robinson (note to parents try not to give your boys girl's names) Bishop of New Hampshire, members of the Communion could have found other things to talk about. Trads in the church didn't initiate the conflict. The idea that a bishop should be better behaved than priests or laymen is widespread in Christianity. The practice of deserting one's wife and children in search of greater sexual gratification seems inconsistent with the standards required of a bishop.

I gather that generic ethics is supposed to be a secular substitute for religious instruction. As such, it is useful only for the 15 percent of the population who self-identify as godless. They could probably use it.
3.30.2009 1:40pm
Yankev (mail):

Do Jews ever pray "Send us the Messiah soon, dear Lord, because mankind has been lost without him for thousands of years, and some have even mistakenly believed the Messiah has already arrived?" A couple of prominent public prayers along that line might cure Christians of their taste for prayer by government officials as government officials.
As a tolerted minority, we generally avoid deliberate public provocation of the majority reliqion.

Which will not keep me from pointing out, however, that sdfsdf has both mis-translated the Shemah and taken parts of it out of context.

The Shemah is the essential declaration of G-d's unity and uniqueness, a belief which is not compatible with any Trinitarian belief.
3.31.2009 5:49pm