Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
[And Also: I found this old post of mine about a book entitled Converting Kate. It uses one of my favorite examples, the God laughs at his creation besting him story.]
There is an interesting article entitled "Addicted to Prayer" in the NYT referencing "evidence accumulates about the many health benefits of religious practice." The article compares prayer to role playing games: when "people use prayer to enhance their real-word selves, they feel good. When it disconnects them from the everyday, as it did for the student, they feel bad."
There are both positive and negative ways to pray. And, it is not necessary based on some actual existence of God, that is as some actual concrete being. The concept though ... which underlines the complexity of religion as a whole. Some atheists or agnostics focus on the idea that "religion" is fantasy. But, it is unclear if something that is the basis of human history from the beginnings apparently lingers on merely because people are convinced about things not there. To quote the article, there is a human "capacity to make something real" here.
Meanwhile, the U.S. government submitting a brief that largely supports the N.Y. community involved in an upcoming USSC case involving use of legislative prayer to start government meetings. This would overturn the ruling below, which a betting person would see likely (the best to hope for is a narrow ruling), which interpreted Marsh v. Chambers somewhat more strictly than the government here suggests is required. This is more likely given changes on the Court that makes dicta* from a creche case for which wrote the main partial dissent likely to have less holding power.
The federal government says the lower court should not have analyzed the content of the prayers here. I think the lower court makes sense in noting, including referencing other circuit rulings, that the content can be taken into consideration to some degree, even without "parsing" them. The lower court in effect uses a balancing approach to determine if endorsement, particularly the "effect" of it (to allude to the Lemon Test) is present. This includes using only local clergy, implications the Christian dominated prayers were "our" prayers (not just the personal means of the people used to sanctify the proceedings) and did not do enough to guard against endorsement. I would let such a fact specific enterprise stand.
The analysis of the brief did note that the government is more supportive of the endorsement test. Changes in personnel matter here too. The 2CA cited, e.g., on a Ten Commandments case where Breyer was the determining vote. He in effect used a balancing test. O'Connor is no longer on the Court. The four man plurality there has a fifth vote.
That broad assault by the town on the theory is not imitated in the
government brief. Indeed, there is a section of the government document
which suggests that a government body that has not had prayers as a
part of its historic practice perhaps should take steps “to clarify to a
reasonable and informed observer” that it is adopting a prayer practice
in keeping with the limited role of prayers in government settings.
The reference to the views of an observer suggests an element of caution
about whether a newly adopted prayer practice might be seen as a form
of endorsement of religion.
The brief's suggestion here is more advice than command though the lower court would probably see it more of the latter. "Before 1999, Town Board meetings began with a moment of silence." As noted here, in the past, changing gears here in the past might have been seen as a red flag. Policy-wise, which is not the issue here specifically true, the old policy would have been best. A moment of silence helps to avoid the problems that might arise here -- as seen there, the case in small localities can be harder for 1A purposes than a state legislature or the U.S. Congress.
As is, hopefully the opinion will be decided narrowly, and this fact specific dispute that in no way blocks legislative prayer will not be used to broadly dispose of the endorsement test. Should we just trust the matter to local governments? Protecting religious minorities would seem just the sort of Carolene Products justification of some court action here. But, realistically, especially with a narrow ruling, that will be the case largely either way. Even when any controversy is a result of a gratuitous replacement of long practice that was better left be.
* Government practices, even legislative prayer, "that have the effect of affiliating the government with any one specific faith or belief" is illegitimate. Thus, a comment in Marsh regarding "indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief" is given a somewhat stricter flavor. The government brief in effect hand wavers away the later dicta.