Bacon's Rebellion

Democracy Thrives in Sunlight

When Is It Time for Civil Disobedience in Virginia?

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James A. Bacon
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(From Larry O’Dell, AP, July 23, 2008) “A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously rejected the Rev. Hashmel Turner’s lawsuit challenging a nonsectarian prayer policy adopted by the council in 2005.

The court said the policy does not violate Turner’s rights because the prayer is “government speech,” not individual speech.

“Turner was not forced to offer a prayer that violated his deeply held religious beliefs,” wrote retired Supreme Court Justice Sandra Day O’Connor, who participated in the case as a visiting judge.

O’Connor wrote that Turner was given the chance to pray on behalf of the government, but was not willing to do so within the government’s guidelines. She wrote that he “remains free to pray on his own behalf, in non-governmental endeavors, in the manner dictated by his conscience.””

The City Council of Fredericksburg made a discriminatory religious test in its prayer policy. But, given the First Amendment – as it was written, not as re-written by Courts – their actions weren’t unconstitutional. Just biased against Christians.

The City Council’s policy is contrary to Virginia’s Statute of Religious Freedom – “Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.” But, I don’t know if these words remain in the Code of Virginia.

What other deities – than Jesus – are proscribed from public prayer in Fredericksburg? Jesus is the only name that can’t be spoken? Does a Muslim prayer meet the nonsectarian standard? How so? Or a Wiccan prayer?

It’s up to the citizens of Fredericksburg to elect a city council to correct their policy.

The Court decision is a different matter. Where is ‘government speech’ defined in the Constitution?

If judges can make up a category of speech, then judges can define speech as they like. As they already have in Sandra Day O’Connor’s addled logic above. Which means they can do far worse in the future.

When did We, The People, as Sovereigns of the United States of America and the Commonwealth of Virginia, give federal judges the power to re-write free speech in the individual free exercise of religion?

The judicial branch is a co-equal political branch of government. The judiciary is semper inter pares only in their constitutional duties to adjudicate existing laws – not to make up new ones.

The issue of who prays what in public in Virginia lies squarely with the cities and counties and Commonwealth of Virginia.

It’s time to take individual freedom back from judges. The Courts seized the power to re-write the First Amendment – especially since 1962. The Legislatures and Executives need to do their constitutional duty to limit judicial excesses – abuses of authority.

The judiciary is as wrong about religion as it was about race for so many decades. Judges built up a body of legal precedents supporting slavery and segregation for over a hundred years after Dred Scott. The five decades of legislating religious prejudices from the bench is less time and no different, politically, than the racial prejudices of former judges.

So, when is it time for civil disobedience in Virginia? If a person prays a public prayer in Jesus’s name, who will arrest him? Do Federal Judges issues bench warrants? Who will prosecute? What is the crime? What is the punishment?

The Apostle Paul spent time in jail. What better reason could there be to be in jail than, “I prayed in Jesus’ name?”

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  1. Anonymous Avatar
    Anonymous

    J.A.B.

    Interesting point. But I keep thinking of what happened in my home county of Chesterfield not long ago.
    A practioner of Pagan Wicca wanted to give the traditional prayer before a BOS meeting. The county attorney said any “prayer” would have to be rooted in Judeo-Christian traditions.”

    So, if you are a Buddhist, a Hindu, a Confucian, a Shinto, a native American, or a witch “crafter” you are out of luck in Chesterfield.

    Peter Galuszka

  2. dkuehn Avatar
    dkuehn

    I take issue with your statement:

    “When did We, The People, as Sovereigns of the United States of America and the Commonwealth of Virginia, give federal judges the power to re-write free speech in the individual free exercise of religion?”

    The issue is not the “individual free exercise of religion” – as O’Connor emphasized, Turner’s individual exercise of religion was never challenged. The restrictions being imposed on Turner’s prayer were restrictions placed on Turner as an agent of the government. That’s where the issue lies.

    If Turner got up of his own accord at this public event and started praying, he would have every right to say what he wants. But if he is acting as an agent of the government in his prayer, then he and the government both have a right to work out what should be said before the prayer occurs. Since the government is the principal and Turner is the agent, it is the government who is exercising their rights, through Turner – who, in turn, has every right to voluntarily quit his post as an agent of the government in this circumstance!

    Now – on your other point, that Fredericksburg has an objectionable bias against Christian prayer, I would completely agree with you. I don’t pretend to know what official government prayers can or cannot be said – that’s an issue for a more informed legal mind than mine.

    But I do know that Turner’s individual rights to public religious expression weren’t violated because he wasn’t acting as an individual in this instance – he was acting as an agent of the state.

  3. James Atticus Bowden Avatar
    James Atticus Bowden

    PG:I knew about the Chesterfield story. The fundamental question, first order, is what is Constitutional or not.

    Chesterfield can do what they did. Just as Dearborn, MI can have Muslim prayers.

    DK: You missed the line from the Va Statute of Religious Freedom. You aren’t supposed to give up your free speech rights when you are in government. Government speech isn’t in the Constitution. It isn’t in the Federalist Papers. It was made up by a judge. You can agree with the concept, but where is the Constitutional basis for government speech?

  4. dkuehn Avatar
    dkuehn

    James – I absolutely did not ignore the line in the statute of religious freedom. Nobody was asking Turner to believe anything differently than what he believed, and nobody was asking him to claim that prayer as his own. But if an organ of the government – such as a board of supervisors, a Congress, or a military brigade – wants a prayer to be said, some human being has to actually say the prayer. Presumably, that was what Turner was asked to do and agreed to do. Nobody is asking him to make those beliefs his own, but simply to be an agent of the state and read the thing! And if he doesn’t like that it’s fine. If he were to say “this is not what I would pray in my own church, but for the purposes of this public event I’ll read it out loud for you”, then that would be fine too – nobody would have a problem with that because Turner’s own beliefs shouldn’t “diminish, enlarge, or affect their civil capacities.”

    Think of it this way – imagine a clerk in some legislature who is tasked with reading a bill out loud to the legislative body. Let’s suppose the clerk is opposed to the message of the bill. Is it a violation of his free speech to read the bill to the legislature because the government is MAKING him recite political speech he opposes? Absolutely not! He’s acting as an agent of the state and it’s well understood by everyone that he and the state agree on what he can and cannot say in that capacity because it’s a job.

    Are limiting police officer’s free speech when we tell them they have to read Miranda rights? Of course not! What about when someone from the executive branch has their testimony rearranged and edited before they testify to the legislature? Of course that’s not a violation of their free speech because they appear in the capacity of being an agent of the state. The same is true here. Its not that Turner is being forced to say nonsectarian prayers – its that the state is imposing the restriction to nonsectarian prayers on itself, and anybody who is seeking to be an agent of the state has to abide by the state’s self imposed restrictions when they operate in that capacity!

    I think your whole “government speech” thing is a complete red herring. No it’s not in the constitution – but neither are the words “the intent of the founders”. I don’t think I’m “rewriting the constitution” when I say that we should respect the intent of the founders in judicial decisions.

    Same with this “government speech” that you have such a problem with. What is a law, a regulation, an executive order, a court decision but “government speech”? What about an order from a military commander? All of it is “government speech” – and the human beings – the American citizens that are actually speaking in each of these cases aren’t exercising their own right to free speech when they say these things, so much as they are acting as an agent or an employee of the state. If the government hires you or retains you to say something you better say what they hired you to say! Since you were hired to do that they aren’t your words, they’re the government’s words! Its a standard contract between a principle and an agent, and as a “pro-business” website, you guys should recognize that! And I guarantee you – contracts ARE recognized by the Constitution and the Federalist Papers

  5. Anonymous Avatar
    Anonymous

    J.A.B.

    Wait a minute. Do you mean it’s constitutional for Chesterfield to create a religious test for what pre-meeting prayers they deem acceptable?

    Peter Galuszka

  6. dkuehn Avatar
    dkuehn

    No, sorry Peter – didn’t mean to give that impression. In my first post I say:

    “Now – on your other point, that Fredericksburg has an objectionable bias against Christian prayer, I would completely agree with you.”

    I agreed with James that the restrictions themselves sounded out of line – just like your Chesterfield example. But I imagine there is some OTHER formula that is constitutional and legal for these sorts of “pre-meeting prayers”. And like I say, better legal minds than myself can identify what that exact formula would be, but presumably there is a formula out there where a public body could have certain standards for inclusiveness, nonsectarianism, openness, etc. in their pre-meeting prayers.

    Given such a constitutional, legal formula for pre-meeting prayers, all I’m arguing is that when someone like Truman agrees to say that prayer, they’re not really exercising any individual freedom of religion – what they’re doing is acting as an agent of the state. So its perfectly appropriate that they would be expected to abide by the restrictions that the state puts on itself when they are acting as an agent of the state. We need to understand these things as restrictions that the state is putting on itself – not on Turner. If Turner expects to speak for the state, he should expect to speak according to the standards that the state holds itself to.

    If Turner were just praying in a public forum (like a board meeting) on his own initiative and representing only himself and they stopped him, obviously that would be inappropriate and entirely unconstitutional – but if he was acting on the state’s behalf – reciting their pre-meeting prayer for them – delivering a prayer on the state’s behalf – then expecting him to conform to the “formula” the state sets for its prayers is entirely reasonable.

    That’s all a completely separate issue from the question “what is a reasonable formula for state-sponsored, pre-meeting prayers”. I don’t personally feel qualified to answer that question – which is essentially the issue you raised with Chesterfield.

  7. dkuehn Avatar
    dkuehn

    *Turner, not Truman – sorry

  8. dkuehn Avatar
    dkuehn

    And Peter – I think it also all depends on the context.

    If someone wants to come before a board meeting as a citizen and recite a prayer, I think they have every right to do that using whatever words they want to use. I’d totally agree with you on that point.

    But if a chaplain opens up a session of the legislature, or if someone else is invited to pray on behalf of the government, it is entirely appropriate that we place limits on what the government can pray. When we place limits on what the government can pray, we’re not violating the rights of whoever was hired or invited to do the praying – because it’s not their prayer! It’s the government’s prayer that they are voicing on the government’s behalf!

    Does that clear things up?

  9. Larry Gross Avatar
    Larry Gross

    excellent dialogue.

    I do not care what citizens do with their free speech and their religion, but I object to ANYONE who is a representative of the Government, engaging in a role as an agent of the Government to invoke religion of any kind in proceedings.

    this is a never-ending camel-nose under tent strategy.. and we already have many existing horrible examples of what happens when Governments are co-opted by religion.

  10. Anonymous Avatar
    Anonymous

    Dkeuhn,
    No, it does not “clear things up.” Chesterfield has no right to restrict prayers generally given before meetings to the “Judeo-Christian tradition.” Even the witches pay taxes for these meetings and the Constitution forbids any religious test. It is an outrage.
    What bothers me about Virginia is that it is so monolithic Protestant Christian and rather intolerant at that. These “Christians” who often pretend they are “oppressed” are in fact a rather dictatorial majority.
    Do, does that “clear things up” for you?

    Peter Galuszka

  11. Groveton Avatar
    Groveton

    I am with JAB on this one. The “government” is not a corporation. It is not owned by shareholders who can sell their shares if they do not like the direction taken by the leadership. Government is a composite of governed. As such, it has no place putting limits on those who it asks to speak. Imagine the uproar that would occur if the politicians themselves were restricted to only speaking in certain ways and on certain topics. For example, you can talk about the war in Iraq but you can’t criticize the President.

    The Constitution never called for religion being banned from government. This was never the intention of the framers. The words in the Constitution and the intent of the framers was that government would never establish a state religion or prohibit the establishment of any religion. However, if the framers were told that a Christian preacher would be asked to lead a government in prayer without talking about Jesus – they would have been astonished.

    I have no problem with Wiccans offering prayer in their way and no problem with Christians offering prayer in their way. I have a big issue with a government body asking a religious leader to offer a prayer and then censoring what he or she can say.

  12. James Atticus Bowden Avatar
    James Atticus Bowden

    LG: Re”I object to ANYONE who is a representative of the Government, engaging in a role as an agent of the Government to invoke religion of any kind in proceedings.”

    If you object to Christian prayers – and other invoking of religion in any government proceeding, then you have missed the entire experience of the American Nation from the Cross dedication in 1607 to the prayers in Philadelphia in 1776 to today. Oops.

    PG: Two answers on Constitutional ity.

    1. The Constitution allows states to have official religions. They all did. Appropriately, Virginia was the first to free herself by an act of the legislature – not some judge making up laws. And, just as appopriately, Massachusetts was last in 1834. So,Chesterfield can do whatever the GA says they can do in the Code of Virginia.

    2. What is accepted as the current body of law, the convoluted and conflicting SCOTUS and other Federal court interventions since 1947, would say that Chesterfield limiting prayer to Judeo-Christian brand is unConstitutional.

    Which leads to the point of my post… the courts had no business making the absurd ruling – or any ruling – that they did.

    Also, check your stats. NoVa is majority Roman Catholic, not Protestant. Just for fun, post about the intolerance – define it, etc. – you see here in the Old Dominion from the Protestant state-wide majority.

    G: Thanks. The Fredericksburg City Council is way out of line and so are the courts.

  13. dkuehn Avatar
    dkuehn

    Peter – I’m not sure where the disconnect is, but I agree with you 100%. I could fully adopt your statement:

    “Chesterfield has no right to restrict prayers generally given before meetings to the “Judeo-Christian tradition.” Even the witches pay taxes for these meetings and the Constitution forbids any religious test. It is an outrage.”

    As my own.

    My point is that it is reasonable to put restrictions on what someone like a legislature’s chaplain says before the opening of a legislative session – that’s what I think could be reasonable formulated and restricted. You don’t want a chaplain praying to a specific God when there is a diversity of religious opinion in the state. You want it pretty nonsectarian, etc. – but what that would be, I don’t have the legal training to say.

    I have a meeting – I’ll respond to the rest later.

    but I assure you, Peter – I’m with you 100% for the private citizen Wiccan in Chesterfield who was not allowed to pray how he/she wanted to pray. Trust me!

  14. Larry Gross Avatar
    Larry Gross

    Some of this boils down to two things:

    1. -what did our forefathers actually mean/intend

    2 – what do we ourselves want to believe

    I don’t have a problem with anyone believing that there is a God – but I have a big problem with them further outlining their specific beliefs as a preamble to a public meeting to discuss the business of all citizens – many of which may not share the specific religious beliefs of the representatives.

    This is a government trust issue.

    If the guy who represents you insists on outlining his specific religious preferences via prayer before he conducts YOUR business – then he is sending a distinct message that his representation may well be biased.

  15. dkuehn Avatar
    dkuehn

    Groveton –
    I’m not sure what the fact that a government is not a corporation has anything to do with this, and James – I’m not sure what the fact that states’ previous ability to establish religions has to do with it either.

    You’re right – states did have the right to establish religions BEFORE 1865, when the 14th Amendment was ratified to extend all the “privileges and immunities” of US citizens to be binding on the states. In other words, whereas only the federal Congress was barred from establishing a religion or prohibiting the free exercise thereof in the First Amendment, those same restrictions were placed on the states with the passage of the 14th amendment.

    The courts’ rulings may be convoluted – that’s for sure – but at base, they aren’t absurd. The rights and immunities of US citizens vis a vis the power of the federal government were extended to include protections from the power of the state governments in 1865. I’m not sure what the issue is, James! This isn’t something the courts made up – it was an amendment to the constitution itself, ratified by the states.

    Now – maybe some of the “tests” that SCOTUS likes to identify are a little silly – I’ll grant you that. But the underlying foundation of the law is not a result of judicial activism – it’s a part of the constitution.

    Groveton: with regard to: “Imagine the uproar that would occur if the politicians themselves were restricted to only speaking in certain ways and on certain topics.”

    It happens all the time! There’s no uproar! When the secretary of the treasury makes a proposal to the Congress about how to deal with the subprime crisis, he HAS to say what the president wants him to say or he’s out of a job! Its not a restriction on free speech, because the secretary is acting as an agent of the government! When the clerk of a court reads off the docket before a case, he’ll get fired if he makes it up on the fly – he HAS to say what he’s being paid to say. And if you’re a chaplain on the legislature’s payroll its entirely reasonable that you abide by certain rules if you’re praying on behalf of that legislature.

    This is not an issue of some private citizen praying ON HIS OWN BEHALF. As James clearly stated, this is a citizen praying ON BEHALF OF THE GOVERNMENT. If he’s praying on behalf of the government it’s not his speech – its the government’s speech, same as with the secretary of the treasury or the chaplain or the clerk of the court.

    No, you can’t do a keyword search and find “government speech” in the constitution… but the constitution orders the president to make a report to congress every year – that’s government speech, not private speech. The congress is empowered to write and pass laws and ratify treaties – that isn’t the speech of any individual… so it must be “government speech”. James, I don’t see how strict constructionism requires doing a keyword search and finding the exact words “government speech” in the constitution – that’s ridiculous!

  16. James Atticus Bowden Avatar
    James Atticus Bowden

    The fact that established religions existed under our Constitutional means that they are Constitutional unless there is an amendment to the Constitution.

    (I address this comment on another thread too.) The individual right in the First Amendment is the free exercise of religion. The proscription on an established church applies to the Congress. Applying individual rights against the abuse of state power in the 14th Amendment would thus apply to the free exercise of religion, not the establishment – which specifically cites Congress.

    If you look at all the rulings on what is or isn’t allowed in state-church relations and in the free exercise of religion – the word ‘absurd’ applies aptly. It’s the result of years of power mad personal mucking around in legislative business by the another political branch of government – the judiciary.

    (Again, a variation on a theme from another thread). If you let judges make up different categories of speech – and let them make up rules for verboten and politically correct – then your free speech freedom is in more jeopardy.

    If any person takes offense at what a person in government says – there are means for redress at every level of government.

    Creating ‘speech’ codes is the wrong way. Terrible consequences lurk in this.

    All rights are limited. It is the responsibility of the legislatures to define those limits – not the courts.

    Thanks, again, for the dialogue.

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