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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Friday, April 16, 2010 ::
    Why Judge Crabb's decision striking down about the National Day of Prayer is wrong

    * It assumes that government action that neither coerces religious conduct nor confers on any religious denomination(s) the status of an official church violates the Establishment Clause. (The Supreme Court has occasionally held this too. When it has done so, it is wrong. It has also held the opposite.)

    * It is quick to conflate religious with political conflict -- raising the intriguing possibility the free speech may also some day be found to violate the Establishment Clause. (Notice how many times the word "controversial," or synonyms for it, appear in the opinion, and reflect on the formerly freedom-loving nations of Europe are cracking down on speech that gives "offense.")

    * It concludes that the National Day of Prayer is like the longstanding monument in Van Orden rather than the recently set-up one in McCreary. Why a statute enacted 1952 falls on the wrong side of the old-and-ok versus new-and-dodgy line is unclear at best.

    * It relies heavily on concurring opinions, not majority holdings, from SCOTUS.

    * It adopts the Lee v. Weisman "coercion" test, which admittedly is a majority SCOTUS holding, but which has never been held by them before or since, and in any event has diffculty passing the giggle test, for the reasons stated definitively for all time by Justice Scalia in his dissent.

    * It assumes -- with much citation from sympathetic commentators but little real analysis -- that just showing people a good time, where that good time happens to consist of prayer (encouraged, but by no means coerced), is not a "secular interest."

    * While the "ceremonial deism" aspect of Marsh v. Chambers is dodgy and Judge Crabb was right not to give it weight, the "history and ubiquity" aspect of Marsh makes perfect sense and the decision is wrong to reject it.

    There's more, but I know the ACLJ will be more thorough than this off-the-cuff job when it takes the case up on appeal.

    :: David M. Wagner 9:20 PM [+] ::

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