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January 10, 2014

Rita Demonstrates the Need for the Establishment Clause

by at 11:17 pm.

As we all know by now, besides the other big shoe that dropped Tuesday night at City Council, there was also a travesty of Constitutional proportions, where one religion got to spend nearly an hour proselytizing on the Council floor during our city government meeting.

For those who watched, it was a special treat, as citizen speakers preached about Christianity (including some very, er, interesting takes on history, Star Wars, and immaculate conception) during our governmental meeting. I won’t go into those speakers any further, but if you really want to clench your teeth through the rambling, utterly incomprehensible arguments, I included a full video cut of the “manger debate,” from suspension of the rules to roll call, at the end of this post.

The winner of the night, however, had to be Councilor Rita Mercier. I’ve taken the liberty to slice together some of the more interesting parts from her apparently-prepared speech. There can be no clearer example of why our Founders went out of their way to keep religion out of the Constitution.

If the purpose of constitutional separation of church and state is to not elevate any one religion or sect over any other (or over nonreligion)…in other words, to essentially remain neutral, last Tuesday’s meeting failed that test entirely, and not just because of the now-non-denominational Christian prayer that is recited by the Mayor at the beginning of every meeting. A person who knew nothing about our country or our city, after watching that meeting, would be left with the impression of a specific religion is elevated here, above all others.

Speaking of our “nondenominational” prayer, this video below is of the recitation of such at the beginning of the same Council meeting last Tuesday. And of course, this prayer, heavy with the mention of a deity, replaced the Catholic Lord’s Prayer the Council used to recite at every meeting for decades. I wrote about this back in 2006 when an interfaith group requested the Council change the Lord’s Prayer to something more equitable (provided you still thought some sort of prayer was a good idea). What we ended up with in 2007 was what you see in the video below - a monotheistic, rather Christian-ish prayer to God. (So, not good for Hindus, most Buddhists, atheists…) I have no doubt that this might be the next lawsuit, given how much attention this manger debate might draw to our city over the Establishment clause.

And finally, I’ve put the full manger debate (all 40 minutes of it) up on YouTube for your convenience (or torment, perhaps eternal), including the aforementioned citizens who were…really enthused about Jesus.

Edit: If you have not yet had the pleasure, I recommend reading through Dick Howe’s excellent synopsis, and also his post on the reactions of a class of UML students who were there that night.

19 Responses to “Rita Demonstrates the Need for the Establishment Clause”

  1. Publius Says:

    Lynne,

    Could you please be so kind as to point out where “separation of church and state” appears in the Constitution? I have included the First Amendment below for your convenience.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1]

    I would also like to point out that one of the first orders of business that the First Congress of the United State did was to appoint a chaplain for chambers. Not exactly a separation of church and state. Since many of the members of the first Congress help write the constitution I doubt they would have violated its precepts.

  2. Gail Says:

    So is there a way to rescue Lowell from itself?

  3. Christopher Says:

    The lawn of St. Anne’s is a perfectly good visible spot for the Nativity without any constitutional issues, though I understand there was an amendment to see about celebrating other traditions on the property. I tend to err on the side of wanting to celebrate everything rather than nothing myself. As for the prayer, there was a single mention of a very generic god, about as innocuous as the reference in the Pledge, though I noticed Elliot crossed himself as he must personally be Catholic. The one Council meeting I attended when Murphy was Mayor I don’t think had even that much. I remember thinking he might as well have been praying to the microphone he was speaking into.

  4. Brian Flaherty Says:

    The Supreme Court heard oral arguments this term on prayer before City Council meetings at a city in upstate NY. The House and Senate begin with prayer and the Supreme Court is introduced “God save the United States and this honorable court.”

  5. Mr. Lynne Says:

    “Single mention of god” doesn’t quite cover it. It was a plea to a monotheistic deity. It was a prayer, which is by its very nature a religious act. I don’t have any interest in outlawing religious acts but I do think the government shouldn’t be in the religious act business.

  6. Mr. Lynne Says:

    The case you’re talking about Brian is Town of Greece v. Galloway. The court heard arguments in November but there were quite a lot of amicus briefs so I wouldn’t hold my breath for the decision soon.

    http://www.scotusblog.com/case-files/cases/town-of-greece-v-galloway/

    The oral arguments had the justices asking some pretty pointed questions.

    http://www.scotusblog.com/2013/11/will-history-prevail-on-prayer-in-plain-english-with-audio-links/

  7. Mr. Lynne Says:

    Publius, as you know the phrase isn’t in the constitution. It’s meaning, however, is embodied in the first amendment and was coined to indicate the amendment’s intent by Thomas Jefferson.

    If we are to infer the intent of the first congress by their actions, then we should conclude that absolutely wanted a separation of church and state. They went out of their way to keep god out of the constitution. As to violating there own precepts, I’d point out the confluence of a document that espoused equality and slavery at the same time. The founders were often guilty of hypocrisy in the way they lived out constitutional principals in their own lives, including opening meetings with a prayer. The fact that some founders kept slaves isn’t a valid defense of slavery and the fact that they had a chaplain isn’t a valid defense that having a chaplain isn’t a violation of the 1st amendment.

  8. joe from Lowell Says:

    “It was a prayer, which is by its very nature a religious act.”

    It was ceremonial deism. That was a religious act the way Taco Bell is Mexican food.

    http://en.wikipedia.org/wiki/Ceremonial_deism

  9. Mr. Lynne Says:

    I take your point, but if Taco Bell came from the government, it wouldn’t be wrong to say that government has gotten into the food business.

  10. joe from Lowell Says:

    Actually, Mr. Lynne, you’ve probably gulped down gallons of government-provided Dunkin Donuts coffee at public meetings. Am I wrong?

    Is the government in the coffee business? No, the government is using coffee to achieve a legitimate public purpose: keeping people awake and happy at public meetings.

    There are appropriate, narrowly drawn exceptions to the general principle of separation of church and state. This point really has nothing to do with the debate going on at that Council meeting, though. Hoo doggies, that’s not even close to the line. That’s the charge of the light brigade. Some of Rita’s comments are liable to be introduced as evidence against the city in the inevitable lawsuit.

  11. Mr. Lynne Says:

    “Actually, Mr. Lynne, you’ve probably gulped down gallons of government-provided Dunkin Donuts coffee at public meetings. Am I wrong?”

    Nope - that’s not the point - being in the business of serving Dunkin Donuts isn’t prohibited. Religion is.

    I get that it’s not a mass, but surely you’re not saying that if it’s against the law it’s still ok because it isn’t that big an event and only a minority complain about it, are you?

    I wonder when I’m in government what kind of small things I’ll be able to get away with when you complain and I ignore you.

  12. Mr. Lynne Says:

    Yes - the prayer is a separate issue from the motion on the floor. That said, it’s still not ok and it’s still ok to bring up things that aren’t ok even if they are different than the previous post.

  13. Mr. Lynne Says:

    “Is the government in the coffee business? No, the government is using coffee to achieve a legitimate public purpose: keeping people awake and happy at public meetings.”

    Actually this is a good point, while there is legitimate purpose in government ceremony, there isn’t legitimate purpose in deism in government ceremony.

  14. joe from Lowell Says:

    “being in the business of serving Dunkin Donuts isn’t prohibited. Religion is.”

    For certainly definitions of “being in the business of,” a vague term that you’re using for its vagueness.

    “but surely you’re not saying that if it’s against the law it’s still ok because it isn’t that big an event and only a minority complain about it, are you?”

    I thought you’d read the link about “ceremonial deism.” No, Mr. Lynne, that is not the reasoning behind the concept. I had thought, based on your representation that “I take your point,” that you understood it. If you think “only minorities would complain about it” is behind ceremonial deism, you clearly don’t get the concept.

    “there isn’t legitimate purpose in deism in government ceremony”

    There is - traditional continuity, and the successful accomplishment of government ceremony. Ceremony depends upon a shared understanding of meanings, which largely grows from the presence of traditional elements.

  15. Mr. Lynne Says:

    Dunkin Donuts entanglements aren’t constitutional issues by nature. Religious entanglements are.

    What distinguishes ceremonial deism from other deism? As far as I can tell we’re talking magnitude and my point is that in principal this probably isn’t as mitigating as you’d think because it’s a matter of opinion and the government shouldn’t be having religious matters of opinion in general. That also means the size of the complaining party isn’t actually salient on the issue’s ‘rightness’ or ‘wrongness’.

    “There is - traditional continuity” You could make an argument that the government has some legitimate purpose for ‘traditional continuity’ (athough I suspect it would very much depend on the specifics). However, a government’s actions to preserve the ‘traditional continuity’ of deism is specifically a constitutional conflict. Blame the founders if you like. I’ve already commented on ceremony.

  16. Eric Says:

    History shows that a lawsuit will be expensive for the city and impossible to win. Move the manger to St. Anne’s.

  17. joe from Lowell Says:

    Another vague term chosen for its capacity to obscure, not clarify: “entanglements.”

    No, Mr. Lynne, as quite a bit of history of American jurisprudence demonstrates, “religious entanglements” are not unconstitutional across the board. As I said, there are narrowly-drawn exceptions to the general principle of the separation of church and state. The government can become “entangled” with religion under certain circumstances, subject to certain conditions.

    There is nothing in the history of American jurisprudence to suggest that the judicial concept of “de minimus” is uniquely inapplicable to First Amendment cases. “It’s a matter of opinion,” you argue, but which appellate court cases don’t include matters of opinion?

    In these cases, as in virtually all cases involving that legal concept, the measure of whether something is de minimus is NOT based on the number of complainants, but on the consequences on any individual complainant. Brining up the number of complainants doesn’t really come into it; an actual violation of one individual’s First Amendment rights would not pass muster, as those rights are individual, and each individual possesses them.

    “Blame the founders if you like.”

    I’d do no such thing, because the Founders were perfectly ok with much greater religious activity and symbolism in government affairs that I am, or than modern jurisprudence countenances. The doctrines I’m discussing date to the 20th century, and represent a significant narrowing of the field of allowable activity.

  18. joe from Lowell Says:

    BTW, “blame the Founders if you like” is a tell that you’re not actually arguing the Constitution, but using the language of constitutionalism to advance a policy preference.

    I don’t like opening the city council meetings with a prayer, either, but the Constitution is not merely a punctuation mark to punch up the sentence, “I don’t like this.”

  19. Mr. Lynne Says:

    “BTW, ‘blame the Founders if you like’ is a tell that you’re not actually arguing the Constitution, but using the language of constitutionalism to advance a policy preference.”

    This is nonsensical. When it comes to rhetroical ‘blame’ I could blame a ‘what’ or a ‘who’. The ‘what’ is the constitution and the ‘who’ are the founders. There is a perfectly logical explanation as to why the ‘who’ question is just as valid as the ‘what’ question - they wrote the thing. Moreover, by invoking the people I get the added commentary that they provide beyond the document itself as to their intent. Indicating that my rhetoric is somehow ‘invalid’ or ‘beside the point’ is not really correct and even if it were it’s pedantic.

    If we’re talking law as it is, sure there are narrowly drawn exceptions - but those exceptions are being challenged on a regular basis exactly because there is a discord between the first principals behind the intent and the intent as enacted. This is why constitutional interpretation changes and needs evaluation. The evaluation process is, at least in legal theory, intended to resolve these discords. That they exist and have remained isn’t actually an argument that the ’should’ exist or ’should’ remain. I know many thinkers assert that raw inertia can be a standard of evaluating law (thank you justice Kennedy [/sarcasm]) but I’d submit that it’s actually a poor standard. In fact the rejection of just such a standard is at the root of our legal progression of expanding civil rights.

    With regard to the manger, current legal doctrine is such that we’d be throwing away money. With regard to the prayer, we’ll see when the Town of Greece decision comes out. I’ll certainly grant that it could come out against my opinion (and I’ll further grant that I’m no lawyer), but you’ll also have to grant that any decision (either way), as decided, could be ‘wrong’.

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