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Opening Arguments

Heaven help us

We just can't figure out where to draw that church-state line. There are now three controversies in Indiana alone. First, Indiana and Texas, joined by 21 other states, have filed an amicus brief asking the U.S. Supreme Court for an "unambigious ruling" permitting prayer before legislative bodies without requiring legislative leaders so screen prayers for sectarian references:

Friday’s amicus brief notes that because various federal appeals courts have reached conflicting conclusions about the Supreme Court precedent on legislative prayer from 30 years ago, Marsh v. Chambers (1983), government officials at all levels typically are faced with costly litigation whether they decide to permit legislative prayer or not. The brief argues that if the Supreme Court issued a clear standard upholding the long tradition of legislative prayer as not violating the First Amendment’s Establishment Clause, then it would enable governments to make informed decisions when such situations arise.

And a federal judge has ruled against the city of Evansville, which had permiited a group of churches to erect a display of 31 6-foot-tall crosses on the city's public riverfront.

U.S. District Judge Sarah Evans Barker said the expanse of crosses across four city blocks and the two-week duration of the display carried a “forcefulness ... that catapults it into the range of constitutionally prohibited speech.”

[. . .]

“This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message,” Barker wrote.

“To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum, thereby transforming it into government-endorsed religious speech.”

And, finally, Ball State has made it clear that "intelligent design" is not to be taught in any science class:

Ball State University president Jo Ann Gora announced that the school would no longer teach intelligent design in science classes following a complaint about the curriculum at the public university.

In a statement released Wednesday, Gora said "intelligent design and creation science do not qualify as science," and that it would no longer be a part of the university's science classes.

"Intelligent design is overwhelmingly deemed by the scientific community as a religious belief and not a scientific theory,” Gora said. “Therefore, intelligent design is not appropriate content for science courses.”

I don't know why Indiana is joining Texas in the legislative prayer case, unless it's just something Attorney General Greg Zoeller feels that strongly about. After the battle here in 2005 over prayers said by citizens before Indiana House sessions, the U.S. Seventh Court of Appeals ruled such prayer permissible, and that's what's still in effect here. An "unambigious" ruling might go Indiana's way, and it might not. With the unpredictability of Anthony Kennedy and a couple of surprises already from John Roberts, I wouldn't make a bet on which way the court would go.

The Evansville ruling is puzzling, and apparently both sides in the case think so, too. How "forceful" does something have to be to reach prohibited-speech status? What would have3 been needed to create a message that didn't "overwhelm the nature of the public forum" Shorter crosses? A shorter stay than the planned couple of weeks? If not all religious displays are prohibited, which ones are, exactly? In what senses is Evansville praticipating in "endorsing" a particular religion?

That last question is most important here. In both cases what the detractors claim is that permitting certain activities, such as prayer before a government meeting or religious displays  on public property, is somehow the "establishment" of a government-approved religion in violation of the First Amendment. But that requires the stretching of the definition of establishment to absurd lengths. In the case of legislative prayer, how can the legislasture vet the contents of prayers without violating the free exercise of religion of those offering the prayers? That's in the First Amendment, too. In the Evansville case, the city has apparently never turned down any request for one of the temporary displays, religious or otherwised. To single these churches out is kind of discriminatory, no?

The Ball State case is a little different, arguing that the sanctity of science rather than the wall of separation is being violated. I think those objecting to creationism in the science classroom have a better case than the prayer and cross objectors. Religion certainly needs to be taught in college, but not in a science class. Faith and science are two different things, and to pretend one is the other diminishes them both.