Dispatches from the Creation Wars

Agape Press reports on an ACLU lawsuit against Doniphan Elementary School in Missouri for opening mandatory school assemblies with Christian prayers. This is a really, really easy case where the school is absolutely certain to lose, but Liberty Counsel, a religious right legal group, has taken the case anyway. And listen to what their director has to say:

Liberty Counsel, which is based in Orlando, Florida, has offered to represent the Doniphan School District free of charge in the case. Mat Staver, founder and chairman of Liberty Counsel, says it is unfortunate, but there is a difference between when the Constitution says and what today’s courts are saying about school prayer.

“Under the current interpretation by the courts, right or wrong, the ultimate result would be if you have a mandatory prayer in the public school classroom, then that would be ruled unconstitutional,” Staver explains. “If the students, however, had an opportunity for a moment of silence, that is permissible; or if they wanted to voluntarily pray or have a moment of silence among themselves, certainly that is permissible as well.”

In this particular case and under the current interpretation, says the Liberty Counsel founder, such prayers likely would be ruled unconstitutional.


Staver appears to be saying that he thinks mandatory prayer should be constitutional. What of the rights of non-Christians not to be forced to take part or listen to religious exercises in a place the government requires them to be? I guess they don’t matter. This case is absolutely a no-brainer. The school’s policy has no secular purpose at all and only has the effect of advancing the Christian faith, at the expense of the rights of non-Christians. And it shows that groups like Liberty Counsel aren’t just trying to protect religious liberty (there is none at stake here), they really are interested in forcing non-Christians to take part in their religious exercises.

Read the ACLU’s full complaint here, and their motion for a preliminary injunction here.

Comments

  1. #1 somnilista, FCD
    August 30, 2006

    Liberty Counsel, which is based in Orlando, Florida, has offered to represent the Doniphan School District free of charge in the case.

    Does this just means they are not charging the school district for their services, or are they also offering to cover the cost of damages when they lose? (Something I picked up from the Dover case)

  2. #2 tsynnott
    August 30, 2006

    Ed,

    Off topic, but…

    This seems the best way of alerting you to an interesting post over at Glenn Greenwald’s blog. Glen Reynolds (Instapundit) and his wife interviewed Richard Posner who just published Not a Suicide Pact, in which he proposes a ‘reconsideration’ of the Constituion in light of the new threats facing us. Reynolds suggests in the interview that Posner seems to be moving away from his originalist position with his Constitution as ‘flexible’ and ‘loose garment, not shrink wrap’ talk. The interview is available as a podcast (the link to PJMedia is in Greenwald post.)

    http://glenngreenwald.blogspot.com/2006/08/conservatives-cheer-on-judge-posners.html.

    Thanks for ‘Dispatches’ — I’m a Liberal who used to think all Libertarians were just Republicans who wanted to outlaw stop sings — its been good learning otherwise.

  3. #3 Ginger Yellow
    August 30, 2006

    Isn’t it unethical for a lawyer to encourage a client to defend a lawsuit they know will be lost?

  4. #4 Theron
    August 30, 2006

    I love the part where Staver claims the ACLU is practicing “anti-religious bigotry.” These assemblies are much like sending the police over to Staver’s house to threaten him with arrest if he does not make an appearance at the local Hindu temple. In either case, you are using the power of the state to coerce participation in a religious ceremony. Of course, the assemblies are OK because it’s the “right” religion.

  5. #5 law student
    August 30, 2006

    Ginger Yellow:

    It isn’t unethical because the school isn’t who is initiating the suit. It is never “unethical” to defend yourself, even if you are likely to lose. Now that doesn’t mean that they aren’t going to lose badly and get stuck paying the plaintiff’s legal fees (as this is a specific provision of cases of this nature). The Liberty Council attorney has an ethical duty to explain this to the school so that they can make an informed decision.

    Another way to look at it is that Liberty and the school believe that courts have been interpreting the Constitution incorrectly, and so even though precedent is against them, they have the right to argue that those prior cases were wrongly decided and should be ignored. That’s how many landmark Constitutional cases got their start.

    That said, they will lose, lose badly, and we can all be thankful for that.

  6. #6 Prup aka Jim Benton
    August 30, 2006

    I agree, of course, with your basic point. However, I am curious — and this is an actual question, not a rhetorical one — as to how libertarians can accept the use of the ‘power of the state’ in this case, to protect a person’s freedom from having religion forced on them, but still reject it in other areas, like having people protected from dangerous working conditions forced on them. This is why I have always had trouble with libertarianism as a doctrine, since i believe government is generally a good thing in that it serves as a countervailing force to protect people.

    And let me give a specific example. There is a suburb of NYC called Kiryas Joel (sp?) that was founded by, and, I believe entirely occupied by, the ultra-Orthodox Jewish sect called the Satmars. (This is the sect that has been in the news because the head of it died and his two sons are fighting with each other over the control of the sect.) In this case, is it wrong for libertarians to want the power of government used to prohibit the public school in this town from having religious ceremonies that all members of the town agree with? (Again, from a non-libertarian position I can defend this, I am asking specifically for the libertarian response.)

  7. #7 Ginger Yellow
    August 30, 2006

    Of course it’s ethical to defend yourself, but in this case it looks to me like Liberty are taking on the case in the full expectation of losing solely to gain legal fees. It’s not like this is a controversial or fluid area of the law – it’s settled jurisprudence. The lower courts would have to follow the Supreme Court’s ruling and there’s not a hope in hell that the Supreme Court would grant cert even if the case got that far, so it’s not like there’s any chance of changing the law.

  8. #8 Stogoe
    August 30, 2006

    I thought they were offering to defend the school at no charge.

  9. #9 Stogoe
    August 30, 2006

    In which case, it’s purely for good press in “Force Everyone to be Christian” circles.

  10. #10 nicole
    August 30, 2006

    Ginger,

    But Staver says Liberty Counsel will be defending the school district free of charge. Then, when the school loses, it will have to pay the legal fees of the plaintiffs (most likely). So Liberty Counsel doesn’t really stand to gain anything from this, except making a scene.

  11. #11 Ginger Yellow
    August 30, 2006

    But Staver says Liberty Counsel will be defending the school district free of charge.

    Fair enough – my bad. Although it still seems unethical unless they promise to pay the plaintiffs fees as well.

  12. #12 Ed Brayton
    August 30, 2006

    somnalista wrote:

    Does this just means they are not charging the school district for their services, or are they also offering to cover the cost of damages when they lose? (Something I picked up from the Dover case)

    Liberty Counsel operates much like the ACLU. They don’t charge their clients and they recover legal fees when they win.

    Theron wrote:

    I love the part where Staver claims the ACLU is practicing “anti-religious bigotry.” These assemblies are much like sending the police over to Staver’s house to threaten him with arrest if he does not make an appearance at the local Hindu temple. In either case, you are using the power of the state to coerce participation in a religious ceremony. Of course, the assemblies are OK because it’s the “right” religion.

    Absolutely correct. Let a school assembly begin with a Muslim prayer or a Wiccan prayer and you’ll see all that rhetoric about how this is just free exercise of religion disappear faster than a cupcake at Oprah’s house.

    Prup wrote:

    I agree, of course, with your basic point. However, I am curious — and this is an actual question, not a rhetorical one — as to how libertarians can accept the use of the ‘power of the state’ in this case, to protect a person’s freedom from having religion forced on them, but still reject it in other areas, like having people protected from dangerous working conditions forced on them. This is why I have always had trouble with libertarianism as a doctrine, since i believe government is generally a good thing in that it serves as a countervailing force to protect people.

    This is a much more complex answer than it appears. First, I think you characterize the situation incorrectly in this case. It’s not using the power of the state to protect people from having religion forced on them because the school is the state. It’s trying to prevent the power of the state from being used to force people to participate in religious exercises. There is clearly a difference between protecting people from the state and protecting people from their own choices. As far as the example of worker safety goes, I actually agree that this is a legitimate state function. Some libertarians would no doubt argue that no one is forced to work at a job and that the market will control worker safety because people will surely want to work at a safe job rather than an unsafe one and that gives the incentive to insure their safety. And I think that’s a reasonable argument in some circumstances, but history has also shown that it just doesn’t work when you’re looking at, for example, a company town like a mining town, where for all practical purposes, that’s where people have to work. As I’ve said many times, I’m a small ‘l’ libertarian, not a big ‘L” libertarian. I do not demand that the whole world operate according to libertarian political theory, but I do firmly believe that libertarianism should be a lot more influential than it is in restraining the staggering growth in the power of government.

    Liberty Counsel will no doubt be handling the case the same way the TMLC handled Dover – they’ll handle the defense for free, but they won’t pay the legal fees of the other side if they lose. And that’s perfectly reasonable. The school should be thankful to have them.

  13. #13 Fastlane
    August 30, 2006

    Right, I recommend this one be said every Thursday:

    THOR!!
    Mighty god of the sky,
    and the open spaces,
    and the god of the particles,
    and the god of the thunder and the lightning,
    I call upon you to SMITE our enemies,
    rend them limb from limb,
    and if you have a chance, bless our food,
    so that we may become hardy,
    and that WE may rend our enemies limb from limb as well!

    Cheers.

  14. #14 Aaron M
    August 30, 2006

    This is right in my neighborhood — Doniphan is about twenty minutes’ drive from where I live. As Ed says, the likely outcome of this case is clear enough, and I have the impression that even the school administration knows they don’t stand much of a chance.

    What’s been depressing, however, is reading the “Speak Out” vox-pop section of the local paper (like a letter to the editor, except you can just phone in, thus avoiding that pesky literacy requirement). Every single response I’ve seen there is STACLU-level paranoia and propaganda.

  15. #15 Greco
    August 30, 2006

    Thanks for ‘Dispatches’ — I’m a Liberal who used to think all Libertarians were just Republicans who wanted to outlaw stop sings — its been good learning otherwise.

    I met a guy in orkut who insisted that speed limits = Nazism. And no, it wasn’t a joke.

  16. #16 Glenn
    August 30, 2006

    Fastlane, that is great. I think the “THOR!!” sells it more than anything. I will encourage my devout Christian friends to open their prayers with “JESUS!!”

  17. #17 Ick of the East
    August 30, 2006

    …..It’s not using the power of the state to protect people from having religion forced on them because the school is the state.

    Yes. But the courts are also the state (which is why you can’t have mandatory prayer in the courtroom either). So it’s using one branch of the state to protect you from another.
    .

  18. #18 Ed Brayton
    August 30, 2006

    Ick of the east wrote:

    Yes. But the courts are also the state (which is why you can’t have mandatory prayer in the courtroom either). So it’s using one branch of the state to protect you from another.

    The difference is that the court’s job is to keep the government from violating the Constitution. The government’s job, at least it seems from the actions of the legislature and the president, is to try and violate it in as many ways as possible.

  19. #19 Ick of the East
    August 30, 2006

    …..The difference is that the court’s job is to keep the government from violating the Constitution.

    No argument there Ed. But my point was that the court is one arm of the state. And since you did use the word ‘state’, and not ‘government’ in your argument I think my point was valid.

    (I suppose the courts could be considered ‘government’ as well, but I don’t think of them that way)

  20. #20 One that knows
    August 31, 2006

    I just wanted to comment as the person that knows the facts in this case. First of all, the prayer was video taped. No one was given a moment of silence, or a choice to participate or not. The school was aware that some in attendance were not open to, or part of, Chrisitanity being pushed on students and others.
    The school policy clearly states: The School District supports the constitutional separation of church and state. The philosophy of the District is to share with the community the responsibility for education. Since religious observances and the display of religious symbols rightfully belong in the home and in the church or synagogue and not in a tax‑supported entity, the District urges that the responsibility for the use of such symbols, and observances of religious occasions, be the province of the home and community.

    The District respects the diversity of its community, staff, and student body and wishes to encourage the teaching and appreciation of cultural pluralism in the District curriculum and school‑sponsored activities without emphasizing or giving school time to religion(s) or religious celebrations beyond the scope of the curriculum.

    So if the Liberty Counsel wants to argue that the constitution has not been interpreted correctly or not does not matter in this case. The school still did not follow their policy. It couldn’t have been written any clearer for them. The school superintendent has said that he does not agree with the law behind the policy. But that law is there to protect everyone.
    I can pretty much gaurentee that if I had asked any other Diety to bless the children, this would have been all over the news and people would have seen this as a big deal. Rather than just someone not being “godful” (as a local preacher stated on the local news).

  21. #21 Yarmy
    August 31, 2006

    Aaron M. or anyone: Do you know the number for the “Speak-Out” section of the Doniphan rag? Maybe the rest of us can balance out the voices.

  22. #22 Ed Brayton
    August 31, 2006

    One That Knows-

    Thanks for the additional information. As I said, this one really is a no-brainer legally. The fact that Liberty Counsel will defend this is strong evidence that it’s not religious freedom they’re after, it’s the authority to force others to participate in their religious exercises. If this had been any other kind of prayer, all that rhetoric about it being a matter of religious freedom would be gone in an instant, replaced with absolute outrage.

  23. #23 One that knows
    August 31, 2006

    Yarmy, I don’t know the number for the Speak-Out section, but I can give you the number to the newspaper. It is 573-996-2103
    For anyone that wants to fax them, you can do so at: 573-996-2217

    I do know that they have at at least four people write in in support of the suit recently. But there has not been any supportive sides shown on the news.
    Churches are now putting on signs that they are praying for Jane Doe. And signs are all over town in yards that people are still praying for the students.
    I think that a lot of people in town are missing the point. No one, that I saw, ever said they were suing the community. Or that no one can pray ever. Just, rather not in a school setting when it is mandatory for attendance and made to appear that the students are required to participate in said prayer.

    And again, I agree and reinstate my opinion, if this had been any other type of prayer, rather than one to Jesus (whom not all Christians pray to), the members of the community would have been losing their minds. It would have been a media circus from the very beginning and the person that dared to do so would have been ran out of town, if not worse.
    But, because this has to do with their way of doing things and their beliefs then it is a terrible, terrible thing.
    I personally would like to know how they can have the audacity to teach kids to follow rules and to punish them if they do not. What is the magic age that rules no longer apply? Or do they only not apply if it is something that the “majority” of the people agree with doing?

  24. #24 One that knows
    August 31, 2006

    I just wanted to make sure that people reading this knows that LC has only offered their services. At this time they are not representing the school.

    It will of course be up to the school if they take their offer. However, I am sure if they do so, it will be against thier current counsels advice.

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