April 22, 2010

Judge Crabb's decision is wrong, just because

etaObama goes through the motions
Here's a couple of Marquette law professors in mutual agreement over their insistence that United States District Judge Barbara Crabb's recent decision in FFRF v. Obama is "wrong," except without either one of them offering the least shred of illumination as to why.

In the meantime we can only speculate.*

Presumably the objections to Judge Crabb's verdict that a federal law ordering the president to announce a national day of prayer violates the Establishment Clause of the First Amendment are based in a notion of historical validation: the claim that if some government-directed religious practice is sufficiently ancient (1988?) then it's somehow exempted from an unequivocal constitutional prohibition.

This was the late Chief Justice William Rehnquist's preferred tactic of manipulating the First Amendment's plain textual declaration of "make no law" into becoming "make some laws" (as Leonard Levy and several others would have it).

That move entails combing through the documents and proclamations of various long-since-deceased political figures and selecting the ones that support the tactician's pre-ordained conclusions while at the same time ignoring the ones that don't.**

The latter technique is considered by some commentators to be a legitimate form of legal reasoning (the modifier "legal" having the desired effect of undermining the very methods and objectives of what is more generally understood as "reasoning").

Others might argue that the federal national day of prayer statute so mandating the president to executive action is merely an exercise of what's known in the constitutional law trade as "ceremonial deism," a judge-made doctrine which has been occasionally found within the relevant case law to be inoffensive to Establishment Clause concerns.

For example, those government acts which purport to acknowledge the (undeniable) role religious faith has played in shaping the contours of American society, such as erecting a granite block inscribed with Biblical commands and placing it alongside a facsimile of the Declaration of Independence in a courthouse display.***

But in fact the present example as correctly adjudicated by Judge Barbara Crabb is, by definition, "ceremonial theism."

The distinction between deism and theism is — or certainly should be — dispositive, but often overlooked. Deism posits a universal creator who created and then disappeared on an extended and still continuing sabbatical whereas theism stands for the proposition that the said creator maintains an interventionist interest in earthly conundrums such as the results of college gridiron contests and determining which missing children are chosen to be recovered unmolested.

So there isn't much effectual point in praying for direct, beneficial action to a deist-style god, is there? Ceremonial theism, on the other hand, remains constitutionally problematic. As the judge has shown.

* See, this blog can do theology with the best of 'em.

** And it's how Rehnquist's spiritual predecessor Associate Justice David Brewer, writing in 1892, could declare, "this is a Christian Nation" despite the U.S. Senate's unanimous affirmation nearly one hundred years earlier that "the Government of the United States of America is not, in any sense, founded on the Christian religion."

*** Not to be confused with the reindeer-in-a-nativity-set doctrine.


Free Lunch said...

Esenberg doesn't seem to be getting many props from his commenters at Shark and Shepherd. It's the same post as his MU one.

John Foust said...

Where's Dan Suhr when you need him?

Jim Bouman said...

Prof (just visiting) Esenberg:
"The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison."

The gasbaggery of this clown knows no bounds. He's praying for reversal.

I remember the Sisters of St. Joseph--God love 'em--telling me all about the efficacy of prayer: "God hears and answers
EVERY prayer...but--quite often-- the answer is 'No'"

illusory tenant said...

I strongly suspect this prayer will fall in that category.