Yes, that’s true.
Did I refer to the Knoxville case earlier?
If I may point people to this post, it mentions several cases in which I believe the government went too far in quashing religious expression of students. I suspect that not a single person participating in this thread will claim that none of these cases represent such an intrusion–that is, I think everyone will find at least one of them is an example of the government going to far. Dio, wanna chime in and offer your opinion?
As I said, I think the problem is the specific examples you’ve chosen, Bricker, and the subgenre of government intrusion that you’ve chosen. I’m skeptical that there’s more than a tiny handful of cases in which constitutional Christmas celebrations have been muted by your “chilling effect.” There certainly are more cases in which religious is otherwise chilled. The pattern of cases that I find, however, tends to be that such chilling is either directed at nonChristian religion or is content-neutral chilling that doesn’t give adequate special privileges to the religious.
Daniel
May I suggest that this would make an excellent new thread? This one is already sprawling enough without side issues like this.
Daniel
I am willing to bet you have not read the Supreme Court’s words in Marsh v. Chambers, where they explain what ceremonial deism is. It is not, as you call it, “…loudly proclaiming “lord, lord” while denying that those words have any actual meaning.”
It is, rather, a concedely originally religious practice that has since “…become part of the fabric of our society … [it] is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Marsh v. Chambers, 463 U.S. 783, 786 (1983).
I dunno, Daniel; as long as Bricker is hanging his hat on the textual clarity of the Establishment Clause (which is already far from where we started), a discussion of ceremonial deism doesn’t seem too far afield. I am curious, relatedly, what Bricker’s take on the Van Orden decision is.
No, Jesus wasn’t “just kidding.” But neither may his words be taken in isolation. The entirety of his teachings must be considered; His words here must be considered in light of the totality of his words. Taken literally, His guidance would seem to condemn any who pray except in secret. I am confident that is not what He intended.
I believe that He meant to establish a church, that He entrusted the leadership of that church to one man, that leadership of that church has passed from that man to a successor down through the ages, and that to that church was entrusted the mission of interpreting Christ’s words for the ages. That church, I believe, is the infalliable guide to what Christ meant.
I think Van Orden was correctly decided. I am pleased with the ever-deepening holes in Lemon, of which Van Orden was only the latest. I think Scalia’s concurrence was right on the money, pointing out the somewhat confused state of the Establishment Clause tests and arguing for a return to a consistent Establishment Clause view that there is nothing constitutionally offensive in a State’s favoring religion generally, as opposed to prmoting a perticular religion, nothing constitutionally offensive in honoring God through public prayer and acknowledgment, and nothing wrong with - in a nonproselytizing manner - publicly venerating the Ten Commandments.
What, specifically, are you looking for in the way of commentary here? Van Orden helps my argument considerably.
(bolding mine)
I’m a bit confused here. First, you seem not to be particularly alarmed, but just stubborn and trying to make sure people understand your (rather minor and specific) point. But then, you make an analogy which, as far as I can tell, is saying that you find Christmas to be “in danger”. Am I misunderstanding you?
One thing about the “chilling effect”… it can’t really be a slippery slope, as it’s basically still anchored to constitutional law, just sliding past it a little bit. So even if the chilling effect continued perniciously for hundreds of years due to those darn liberal chilling-effect-people, it would hardly put Christmas itself, or even Christmas in public schools, in any meaningful “danger”.
I guess part of what’s still confusing me is a perceived disconnect between the words that you are choosing and your tone. From your words, you seem to be now talking only about a very minor and not-long-term-threatening effect, more interesting as an intellectual curiosity than as something that is actually affecting large numbers of students’ lives. But from your tone, I still get a sense that you still feel like this is an “attack” of some sort…
I’m not sure what point you’re trying to make with those examples. It seems you’re using them as better examples of Bricker’s new position than the ones he’s offered previously in this thread. However, in spite of the fact that Bricker has disavowed the use of the word ‘war’, and seems to have moved to the more general term ‘religious activity’ from the original ‘Christmas’, he still seems to be holding onto the idea that there’s some action afoot that’s having a “chilling effect” on his religion; namely, Christianity. He doesn’t appear to give a rat’s patootie about similar thwarting of First Amendment rights when it comes to Jews or Hindus or Moslems, etc., otherwise he’d’ve been up in arms about the “chilling effects” against all religious holidays and/or observances, and not just Christmas. I’ve yet to see him come out and admit that there is no movement against Christmas.
Indeed. And as the victim of such “chilling” myself during my Freshman year of High School, wherein I was kicked off the Pompon squad (that I organized for the first time in the school’s history) because, as was told to my mother in the presence of the vice-principal, and I quote, “Because your daughter is a goddamn Jew and I hate her,” I find his concerns about not getting to celebrate Christmas in public schools a bit offensive. When people like him fall for the smear-tactic hype that people like Bill O’Reilly use to rile people up in an effort to further demonize their political opponents, and then continue to perpetuate the erroneous conclusion brought about by said hype, it is a detriment to all Americans who seek to have their First Amendment rights respected, and that’s the most chilling result of these hate campaigns, not that sometimes administrators get it wrong and have to be corrected.
I mention them because I think one of his arguments–namely, that some people think the government never goes too far in quashing religious expression–is incorrect. I am curious to see whether anyone will look at these examples and say that none of them represent the government going too far in quashing religious expression.
Even if there’s one example of the government going too far in quashing the expression of a Christian, that’s one too many. However, if 99% of the cases involve the quashing of nonChristian faiths, then maybe our attention should focus more on that dynamic than on a dynamic in which people are scared of the ACLU.
Daniel
Could you summarize these cases, just for general interest?
I tend to think that the Founders had specific denominations in mind when writing the 1st amendment (ie, there will be no equivalent of the Church of England here); and that at some point (what case?) this was expanded to include religion in general. Personally, I agree with this movement (and therefore disagree with Scalia), but I’m curious as to when it happened, and what the 2 cases you cite above have to say.
Sorry, Bricker, my fault: I meant McCreary.
McCreary County v. ACLU, 125 S. Ct. 2722, 2733 (2005) (internal citations, quotation marks, and ellipses omitted).
Thoughts?
I think McCreary is a good example of the confusion surrounding Establishment Clause jurisprudence. The take-away from McCreary is that We the objective manifested may be dispositive of the constitutional enquiry, and that the history and development track of the tableau should be considered when determining its purpose.
Not “IS dispositive.” But “may be” dispositive.
I have the same practical objection to McCreary, by the way, that I have long held towards Batson v. Kentucky: it sets forth a test that it practically begs the subjects thereof to cheat on. A prosecutor who wants to strike blacks from his jury can do it safely; he just has to offer up any race-neutral reason for doing so. An organization wanting to display the Ten Commandments must merely shade the decisional record (ironic indeed, considering the substance of the Eighth Commandment).
So, um, is McCreary good law? I’m just a humble federal law clerk.
And what does that word “mandates” mean, anyhow?
Also, this
is kinda funny, as it’s an argument against Van Orden. The decisional record is one of the principal ways the Van Orden majority distinguished that case from Stone v. Graham.
Anyway, McCreary: Good law?
And what in bloomin’ blazes does any of this have to do with Christmas?
Christmas comes but once a year, and we hope a thread like this will also. 
Bless you, my Cynic.
During my tenure in the public school, I had to sit through daily Bible readings over the intercom, prayer in faculty meetings, fire and brimstone sermons in school assemblies, a sermon by a then well-known visiting TV evangelist, mock church services presented as “entertainment,” a prayer service directed by a faculty member who knew I objected, harassment from co-workers about my religious beliefs (with taunts about how I should “pray without ceasing,” and harassment from my supervisors about my religious beliefs.*
*I requested All Saints’ Day and Ash Wednesday off each year for religious purposes. The Executive Principle and District office always had to grant my request or they knew they would have consequences. Yet my Assistant Principal was told to “run interference on this” when they received my request. (They were unaware that we were old friends and confidants.) The Southern Baptists did not look favorably upon any Anglican or Catholic practices. In fact, the District Supervisor said that Ash Wednesday was “not an established Holy Day.” Neither was All Saints’.
Chilling effect? For a few hours each day students and staff should keep their minds on academics and creative thinking. Or, when they choose, they can pray silently about things that concern *them. *
Bricker, I know it’s been awhile since I last butted in (and yes, I have read the rest of the thread), but there are still some points I think could bear further discussion.
For the whole context: my post was 473, your response was 482, which you clarified in 486.
It seems that your argument places a direct correlation between the amount of “chilling effect” and the extent to which the ACLU has wrongly interpreted the establishment clause. This is important because I had previously assumed that the “chilling effect” was specifically referencing an** overreaction **on the part of government officials, and unfairly placing the burden of that overreaction on the shoulders of the ACLU.
I certainly see why you believe that a “chilling effect” has caused certain government agencies to react out of proportion to what the law strictly demands. I also think that there’s a vast difference between that and an overreaction that is also out of proportion to the ACLU’s intent.
Suppose (entirely hypothetically) that I decide to sue my school to remove Christmas from the calendar. Naturally, I fail because I’ve wrongly interpreted the law. Other school districts choose, voluntarily, to remove christmas from their calendars to avoid the cost of potential lawsuits by their own misinformed students. I see a legitimate “chilling effect”.
But if one of those school districts should overreact and prohibit any mention of Christmas during school hours, I see no reason to blame me. I may have misinterpreted the law, but it was a SINCERE misinterpretation. I may be happy that I’ve unintentionally gotten several districts to bend to “my will”, but I’m equally crushed by what has happened in the overreacting district. Any doubt to that effect should be put to rest when I lend my effort to fighting AGAINST the overreacting district, no?
You’ve been clear about using the words “unintended chilling effect,” but to me there are two ways of interpreting “unintended”. One of which, while unintended, is consistant with the goal of the original action. The other refers to an actual unintended, unpredictable, undesireable consequence of the original action.
My point is that evidence of the former may be considered evidence of a widespread anti-christmas movement, but certainly not the latter.
And you’re telling us this because you graduated last year, and thus your experience is a fair and accurate snapshot of the current practice?
They were half-right. Ash Wednesday is NOT a Holy Day of Obligation.
If the ACLU happens to be the actor in a particular case, then yes… but that “blame” does not then get imputed to the ACLU has a whole. If a police officer stops women for traffic violations and then coerces them into sex in exchange for not arresting them, I can certainly blame the police officer in that instance without placing blame on the shoulders of the police.
Sure. Someone that builds a snowman at the edge of a hill does not intend anything wrong, but I may still speak of them as the reason for the avalanche, even though their conduct was innocent.
Right. We’re on the same page there.
Maybe “blame” is not the right word. I think you started the avalanche, even though the consequences of the avalanche were unintended, and you lent your efforts to stopping it. I wouldn’t hold you liable for damages, but it’s not unfair to say it was your actions, unintended, innocent, and legitimate, which brought about the current situation.
I agree that much of what’s happened fits into your second category.
Again we see “movement.” I have disavowed, from the beginning, any concept of “movement.” What’s wide-spread are the various actions. And they’re only “wide-spread” in a comparative sense; in an absolute sense, they are a small fraction of the way the holiday is celebrated.