August 25, 2012 - LAW AND RELIGION FORUM

It is difficult to know exactly what the facts in this case really are, because, as reported here, I cannot understand what possible complaint the Freedom From Religion Foundation could have. The story reports that it is a longstanding tradition of a high school football team in Texas to provide players with pre-game meals made by various churches in the area. If this truly is all that there is to the story, then I feel confident in saying that FFRF has no case under the Establishment Clause. I cannot see how, even under any of the watery tests currently in use, eating food that a church prepares comes close to violating the Establishment Clause. If it does, so much the worse for that silly interpretation.

There is, however, some suggestion in the story in a quote by FFRF attorney Andrew Seidel that the students were taken to a church to eat the food there and that the pastors were “shar[ing] the gospel of Jesus Christ” while they ate. If there was indeed proselytism going on while the team members were eating at an event, in church, that they were required to attend, then that is, in my view, a much stronger case for violation of the Establishment Clause. Indeed, one doesn’t need to talk about anything as loose and unclear as the endorsement test to find that sort of state-sponsored proselytism, at a public school function and at an event where students were required to be present, problematic.

What about taking students to a church at which they ate some food prepared by the church, but at which there was no proselytism? Well, this is admittedly a more intermediate situation, but it’s worth noting that context will likely matter here, too. See, e.g., the Seventh Circuit opinion recently discussed here, where in a very narrow holding the court decided that having a public school graduation inside a church with rich iconography violated the Establishment Clause, but that it would not necessarily do so in all cases. See also this post by my colleague Mark, and particularly the second point he makes about the issue of proselytism.

The deviled eggs are in the details.

Here’s an interesting comparative law item. In a gesture of solidarity with Pussy Riot, the Russian punk band currently serving a two-year prison term for staging a “punk prayer” in Moscow’s Christ the Savior Cathedral, three masked protesters stormed Cologne Cathedral in Germany last Sunday during Mass. The protesters shouted “Free Pussy Riot” and threw leaflets at the worshipers until church guards escorted them outside. Authorities in Cologne now say they will prosecute the protesters for “disrupting the free practice of religion,” an offense with a three-year prison term under German law. “The right to demonstration cannot be set above the right to religious freedom and above the religious feelings of the congregation,” the dean of Cologne Cathedral remarked.

A couple of observations. First, as this episode demonstrates, one can’t simply dismiss the Pussy Riot trial as a symptom of dictatorship. Even in Western democracies, it is illegal to trespass on religious sites, and potential prison terms can be surprisingly harsh. To be sure, it’s unlikely the German protesters will actually serve three years; in the US, as I’ve explained, they probably wouldn’t serve time at all. And the German case differs from the Russian in that the German protesters actually interrupted a religious service. But the basic point is that trespassing on religious sites is a crime, even if one is trying to send a message about a great wrong.

Which leads to the second observation. What, exactly, was the message the German activists were sending? What was the point of disrupting Mass in Cologne Cathedral? Cologne Cathedral is not Russian Orthodox. It’s not even Orthodox. It’s Catholic. However bad the corruption in the Russian Orthodox Church, the Catholic Church bears no responsibility for the Pussy Riot prosecution. It’s not like the Vatican called for throwing Pussy Riot in prison. So, really, it makes no sense to disrupt Mass in a Catholic cathedral because of what the Russian Church hierarchy allegedly did to Pussy Riot. Unless, perhaps, the message is that traditional Christianity anywhere, in any form, should be attacked.