My friend, Paul Horwitz (Alabama), has an op-ed in today’s New York Times on “The Response,” an all-day prayer event in Texas promoted by Governor Rick Perry ostensibly to address various current social and political crises.  Paul notes that the suit filed by the Freedom From Religion Foundation seeking to enjoin Governor Perry from promoting the event was dismissed, and (at least in the op-ed) he agrees with the dismissal.  The suit was dismissed for lack of standing.  But Paul is more uncertain-sounding on the merits here.

On that front, I thought I’d raise one little thought stimulated by Paul’s excellent piece: I believe that our present Establishment Clause jurisprudence stifles (suffocates?) the kind of social engagement that Paul advocates.

Folks will know that one test in circulation to prove an Establishment Clause violation is the “endorsement” test, an approach which requires a court to determine whether the speech, symbols, displays, and the like which are in some way supported by the government make a reasonable (or “objective”) observer feel like a political outsider, or not fully a member of the political community.  Paul says in his piece that there are certain things that the government cannot do, and he lists compelling school-children to pray each day as an example.  That’s certainly true. 

But under the endorsement test, government cannot do much, much more than just that.  Under many circumstances, it cannot put up a temporary religious symbol or display.  Under some, it cannot hold a moment of silence in a ceremony, or permit a student led prayer at a sporting event.  So far, courts have rejected the claim that “under God” must be removed from the Pledge of Allegiance, but I cannot see that a true reading of the endorsement test would permit it to remain.  Likewise, I do not see how when public figures are speaking in their official capacities — when a governor is speaking as governor, when a President is speaking as President (as opposed to as a private person) — they could, under a fair reading of the endorsement test, make statements invoking religion (I know that some people have argued that, e.g., when a President invokes religion in an inaugural address, that’s not problematic because it’s the President himself speaking, but I do not find that persuasive in the context of a public statement when the President is speaking qua President, as the representative of all of us).

Let’s set to the side the underlying question whether we find the endorsement test appealing, useful, the best reading of the EC, and so on.  I understand that many very smart and thoughtful people disagree with me about the merits of the test.

I want to make the more narrow point that if we are interested in engaging religion in the way that Paul suggests — if we are interested in making religion a live part of our political discourse — the endorsement test (as compared with many other possible approaches to the Establishment Clause) makes it far less likely that the sort of engagement Paul writes about will occur.  That is because the endorsement approach makes it extremely likely that religion will be sidelined by constitutional law, and that the first (and only) reaction to its introduction by public officials — in one way or another — will be an effort to stop it by legal means.  For it must be the case that some citizens and others in Texas who heard the governor promoting a day-long event at which people would pray and fast in response to national political crises of various kinds would reasonably, objectively, feel politically excluded — and therefore feel themselves to be political outsiders — by the governor’s statements. 

I recognize that Judge Miller resolved the issue through standing doctrine, and the Seventh Circuit’s decision (relied on by him) dealing with a national day of prayer made the same move.  I suppose that this is one way of circumventing the potent reach and implications of the endorsement test.

But it does not seem to me to be the most honest way.  And, though Paul may disagree, it does not seem to address directly the stifling effect of the endorsement test on just the sort of engagement that Paul commendably and eloquently advocates.  — MOD (x-posted MOJ)

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