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Saturday, December 16, 2006

Q: At a Tangipahoa Parish school board meeting, what's the difference between a fragmentation grenade and a prayer?

A: The grenade was probably thrown by the United States Court of Appeals for the Fifth Circuit. (Metaphorically speaking, of course.)

I cannot possibly match the indefatigable Howard Bashman for pith and eloquence here (link and boldface in original):

Splintered three-judge Fifth Circuit panel holds that Tangipahoa Parish School Board cannot open its meetings using any of four specified prayers: [Friday's] decision consists of separate opinions from each of the three judges on the panel. At first blush, this case appears to be a likely candidate for rehearing en banc.

And "blush" is certainly the right word. I certainly agree with Howard as to the likelihood that the full Fifth Circuit, sitting "en banc," might review this decision. And it ought to.


This case is an excellent example of how three smart circuit judges, each with smart law clerks and abundant resources for research and writing, are nevertheless thrown into near-total confusion by the mishmash of Supreme Court precedents on the First Amendment's guarantees of religious freedom. There's no possible way that I could summarize the substance of this 65-page three-sided decision, but to give you a hint of how fractured this ruling — and the law — are, here's Judge Rhesa Hawkins Barksdale's first three paragraphs (hyperlinks and bracketed portions mine):

This appeal presents an Establishment Clause issue of first impression in our circuit. The Tangipahoa Parish School Board, its Board members, and the Tangipahoa Parish School System’s superintendent (collectively, the Board) challenge a permanent injunction against the Board’s opening its meetings with prayer. Consistent with the long-standing rule of deciding a constitutional issue on its most narrow basis, the injunctive relief must be narrowed greatly. This disposition is reached through differing opinions by each panel member.

The Board’s having conceded the prayers are unconstitutional under the test employed in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), this opinion assumes, without deciding, that Marsh v. Chambers' legislative/deliberative-body exception applies. 463 U.S. 783 (1983). Under Marsh, the four prayers at issue are unconstitutional; the balance of the injunction is vacated. Applying a Lemon, rather than Marsh, analysis, Judge [Carl E.] Stewart concurs in these four prayers being unconstitutional, but would affirm the injunction. Judge [Edith Brown] Clement would vacate the injunction, opining the prayers at issue fit within Marsh’s ambit of protection.

As a result, the portion of the injunction relating to the four prayers in the parties’ joint stipulations is AFFIRMED; the remainder of the injunction is VACATED. This matter is REMANDED to the district court for entry of an injunction consistent with this opinion. AFFIRMED in PART; VACATED in PART; and REMANDED.

And I'll tell you, friends and neighbors, that if Judge Beldar had been on this panel too, there would have been four different opinions — but mine wouldn't have even tried to harmonize and homogenize and explain and rationalize a handful of Supreme Court decisions that clash like bagpipes, banjos, and bazookas.

Nobody was forced to pray. Nobody was forced to stay in the room while the prayers were said. Nobody was prevented from saying a different prayer. Anyone could have asked the meeting leaders to say (or permit them to say) a nondenominational prayer, or to say a non-Christian prayer, or to have a few moments of chanting or silent meditation (followed by tofu-smoothies or peyote buttons) from time to time. The fact that students could attend a meeting of grown up school board members doesn't make this case even remotely similar to the line of "prayer in the public schools" cases, all of which are premised on the (questionable) theory that by permitting voluntary prayers, schools (as agents of the government) are therefore implicitly compelling all students to join in them. Wherever the border is between the Establishment Clause and the Free Exercise Clause, then, I'd find this case to be squarely in the Free Exercise territory — meaning no First Amendment violation, and that in fact these prayers ought to be constitutionally protected.

Not that I expect the Supremes to agree. Nor do I expect the Fifth Circuit en banc to write it up the way Judge Beldar would, because to do so they'd have to go farther than "harmonizing" Supreme Court precedents. They'd have to start busting some up and throwing out others altogether. And no lower appellate court can do that, and they get their knuckles rapped when they try.


You may recall Judge Clement's name being floated as a potential Supreme Court nominee last year. But other than that, I don't know much about any of these three judges in particular.

Stylistic clues suggest to me that there was some general consensus among at least two of the three judges after the oral argument, and that both Judge Barksdale and Judge Stewart attempted to write an opinion that would draw at least one other judge's concurrence. Judge Clement's opinion, by contrast, seems to have been written from the outset as a a dissent from the outcome, and from all but a small piece of either other judge's rationales.

However, I'll venture a confident guess, from what I know of the typical Fifth Circuit processes, that there was much correspondence, much suggestion of revisions, and many telephone calls that flew back and forth between these three judges' chambers before this decision was announced. Circuit judges in general write way fewer separate opinions than their brethren upstairs at the Supremes, and they genuinely try hard to avoid this kind of chaos where all three judges fly off in different directions. They also know that the poor district judges have to apply what comes down from the courts of appeals on a day-to-day basis — and a three-way split opinion like this one is worse-than-useless guidance for the district courts.

In fact, it would not surprise me a bit if this opinion — or rather, these opinions — were already made the subject of preliminary discussion among some or even all of the other Fifth Circuit judges about the possibility of en banc rehearing, even before the opinions were released. Three judges split this badly might well have already asked for some ideas from outside their own panel, and just as a "heads-up," panel members sometimes pre-circulate opinions in cases that they expect may become controversial.

In the usual situation, when it comes to consideration for en banc review, there are typically at least two judges who are defending an opinion in which both of them have joined — defending it by urging the full court that the case need not be reheard, and that their panel opinion should just be left alone. This is something poorly understood by most of the public and even by many lawyers: Whether just a two-judge majority or all three judges in a unanimous panel decision, those judges become, in effect, the strongest defenders of their work — and those two or three judges (and their staffs) can indeed turn into fierce and very capable advocates amongst their peers, more often than not becoming considerably more effective than the lawyers for the actual litigants! They're not doing anything even remotely unethical, because they're not advocating for one side or the other in the case. Rather, they're advocating particular legal arguments. But to the outside world, and especially to the losing litigants, that might seem a distinction without a difference.

Sometimes, because of that advocacy, coalitions among the judges on the merits begin to coalesce before a vote is taken on whether to rehear the case en banc. But quite often, even when they've been persuaded that a panel decision needs a closer look by the full court, or when they've instead voted against rehearing (but been outvoted), many judges are, quite appropriately, reluctant to begin committing to a position on the merits before the rehearing briefing and argument. Nevertheless, you still see that advocacy making a difference in the conferences after en banc oral arguments, and as proposed majority and dissenting opinions begin circulating afterwards.

Here, though, the three-way split among the panel's judges is likely to dilute the effectiveness of anyone's advocacy for any particular result on the merits, while simultaneously making some sort of en banc rehearing more likely. And it means that there's probably no "favorite" going into en banc proceedings, no position that already has substantial momentum.


The chances for eventual Supreme Court review aren't nearly as good, though, to the extent that can be predicted at this point. For one thing, the en banc Fifth Circuit would keep trying to find some way to fry the dog's breakfast of Supreme Court precedents back into something that resembles an edible hash. What the en banc court produces might not be pretty, but it might not be sufficiently ugly that the Supreme Court would want to mess with it. Beyond that, though, Supreme Court Justices sometimes refuse to grant certiorari in cases in which they predict they're going to splinter badly themselves; you may not be able to get the necessary four votes to grant cert, in other words, unless at least four Justices think they'll probably be able to get five justices to at least mostly agree with each other.

And quite frankly, I'm concerned that if the Supreme did agree to hear this case, they'd end up making the Fifth Circuit panel's three-sided opinion look good in comparison. It wouldn't surprise me if the Supremes came up with seven or eight different opinions.

Posted by Beldar at 05:26 AM in Law (2006 & earlier) | Permalink


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(1) Jinnmabe made the following comment | Dec 17, 2006 1:31:09 AM | Permalink

It seems odd to me that this particular area of the Constitution has spawned such a train wreck of precedent. And, it's odd to me that it's odd to me, if that makes any sense.

I started to wade through the opinions, but I threw in the towel after a few pages.

(2) dchamil made the following comment | Dec 17, 2006 9:42:11 AM | Permalink

"...cannot open its meetings using any of four specified prayers." Such micromanaging activism as this that Beldar reports seems inconsistent with Beldar's earlier post in which he asserts that judges are loathe to use their full powers.

(3) Beldar made the following comment | Dec 17, 2006 10:56:17 AM | Permalink

dchamil, that's a good point. The district judge, and then the three-judge Fifth Circuit panel, and now, perhaps, the full Fifth Circuit, are dealing in this First Amendment case with tough issues of constitutional law that have broad social impact. As a matter of judicial prudence, if they can find ways to avoid deciding more than the minimum number of constitutional issues necessary to resolve the case, they ought to use those ways. That's why, for example, the panel narrowed the scope of the district judge's injunction against all prayers, and confined it to the four specific prayers described in the record (each of which had prominent references to one particular religion, Christianity, through invocations to Jesus). They were trying not to say, "We're giving you a ruling that all conceivable prayers would be banned." So that's actually a good instinct — but one that I think probably makes their ruling so narrow that it will be useless in providing any meaningful guidance to the school board as to what they can or can't do, because these weren't prayers out of a Book of Common Prayer, to be used repeatedly verbatim. It may superficially look like a case of micromanagement, but it's actually not — in sharp contrast, for example, to the California judge in the lethal injection case I've also been blogging about lately.

(4) Centerfield made the following comment | Dec 17, 2006 1:02:11 PM | Permalink

There is only one reason people want to openly pray before, during, or after a public gathering – to prosteltize. What, their “higher power” can’t hear a silent prayer? School board meetings are for secular purposes. They should not be used by people to display or spread their beliefs in supernatural forces – whether or not it is constitutional. I’m sure there is nothing unconstitutional about people arguing over their favorite NFL team at a school board meeting – but it is immature and boorish – just like praying at one.

(5) BTD_Venkat made the following comment | Dec 17, 2006 1:44:14 PM | Permalink

It's funny you characterize it using the words "free exercise" . . . .

(6) Beldar made the following comment | Dec 17, 2006 4:18:42 PM | Permalink


Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

(Emphasis mine.) I don't understand why you think that's funny, BTD. Did you not know that there were both "establishment" and "free exercise" provisions in the First Amendment?

(7) made the following comment | Dec 17, 2006 8:33:31 PM | Permalink

"all of which are premised on the (questionable) theory that by permitting voluntary prayers, schools (as agents of the government) are therefore implicitly compelling all students to join in them. "

That's a pretty dishonest characterization. The issue in question isn't permitting voluntary prayers: those, in fact, are allowed. The issue is whether government employees can officially organize and lead prayers.

I've never really gotten the zeal for official prayer. We don't elect our government officials to pray for us as part of their official duty. We can do that fine on our own, without ceding them the authority to do that on our behalf. If they need more time for prayer of any sort, they have all the time in the world to do it whenever they aren't conducting the people's business. We elect governments to serve mundane ends: the spiritual ends we don't need governments for.

(8) Beldar made the following comment | Dec 17, 2006 8:34:42 PM | Permalink

Centerfield, there may be some element of proselytization is some people's public prayers. Certainly the entire notion of "witnessing" in the Christian faith (see, for example, 1 Corinthians 2:1-5) involves the notion of to demonstrating to those around you, through example, how to lead and live a Godly life. But I think most Christians of just about any denomination would say that their main purpose for praying at the opening of a public meeting is to speak to God with their prayers — for example, in asking them to bless and guide the board members — and that recruiting nonbelievers to the fold is certainly not their only, nor their primary, purpose in praying there or anywhere. I'm less confident that I know enough to speak for other religions, but I suspect they'd have similar or identical views.

If you've already concluded that prayers in any religion are nonsense — and then jumped to the further and, I submit, very disrespectful and cynical conclusion that the people making them have different motivations than they claim to have, and that the prayers are insincere and their real goal is solely to proselytize — then you're in the posture from which opponents of religion being associated with, or even tolerated at, public schools or functions contend that they're being "coerced." The coercion argument started with "official" and compulsory (subject to opt-out with a parent's note) prayer in public schools, and in that specific setting the argument has its greatest plausibility. But it's been abstracted to other situations, and to religious activities that are genuinely voluntary, so as to infringe upon the liberties of those who would like to engage in them.

Your mileage will vary, and you're free, of course, to refuse to participate, to refuse to attend, or to describe those who do pray in public as being "immature and boorish."

I'm not sure if your comment is conceding, though, that this parish school board's practices are constitutional as a legal matter. If you are, then we agree with each other, and neither of us agrees with the results of this Fifth Circuit opinion.

You have, though, likely offended some of the football fans among my readers.

(9) Beldar made the following comment | Dec 17, 2006 8:45:14 PM | Permalink

To the poster who left no name, unintentionally I assume:

I'd prefer not to be called "pretty dishonest" on my own blog, even if you may disagree with something I've written here. You and other readers may think I'm badly wrong, snarky, misguided, or such, and you're welcome to say so in comments, and I'll take no personal offense. I'll even accept "disingenuous" as a civil accusation even if I dispute it. But "dishonest" is uncivil, and I do require commenters here to be civil to the host. Start your own blog to call me dishonest, if you wish.

But I believe that it's you who's mischaracterized what's happened (probably through an honest misunderstanding, rather than dishonesty). The prayers at issue have not been offered by the Parish — which is to say, by its school board members acting in their official capacities leading or permitting a board-prescribed official prayer. From page 3 of the opinion (emphasis mine): "Doe challenged several prayer events permitted by the School System." And at page 7: "the Board’s unwritten practice of selecting speakers who give prayers of their own unrestricted choosing remained in effect." This was all part of a stipulated set of facts on which the litigants agreed. No claim was made that some individual had asked to be selected by a board member so that he could, for example, give a prayer from outside the Christian faith and then had been refused in that request. No single board member or officer had the authority or traditional right of making selections exclusively. The board members' involvement in their official capacities seems to be limited to preventing the chaos that would ensue to the meeting if multiple people wanting to present unlimited prayer, perhaps simultaneously — a "time, place, and manner" restriction that is indeed appropriate to their official function (and not a violation of the Free Exercise Clause).

They would tell you, and have told the courts, that theirs are indeed voluntary prayers that they're making out of their own personal religious beliefs. I don't believe that they understand themselves to have been elected for the purpose of praying for anyone, nor that they would claim to have an official duty to do so (as distinct from a religious duty). The plaintiff in this case would nevertheless have the courts order them not to make, nor permit anyone else to make, any voluntary, public prayer, made in the praying-person's personal capacities while at any school board meeting. By agreeing to be public servants, then, the plaintiffs would have the board members forfeit the religious liberty that I believe the Free Exercise Clause in fact guarantees to everyone (including public servants). And the plaintiffs would make the board members infringe upon the religious liberties of others who are not board members.

I readily admit that the Supreme Court has not interpreted the First Amendment to support my conclusion here. But I think the Court is wrong, and that its First Amendment precedents are a disgraceful shambles.

(I would not, by the way, accuse any of the Justices as having been "dishonest.")

(10) hunter made the following comment | Dec 21, 2006 11:49:50 PM | Permalink

It is great to see you at it again.
I am also troubled about the lack of focus on the blatant censorship aspects of this. How dare a court permit anyone to talk them into ruling against people freely expressing themselves in a public meeting?
How dare a court even accept a complaint from someone saying that a group cannot conduct a meeting as they wish?
We have allowed the ACLU to impose censorhsip on us in the name (they falsely calim) of keeping the state out of religious practice.
Odd, but all they actually do is censor people from doing what the Constitution specifically permits them to do: freely practice and and freely speak. We do not need to argue about the Christian nature of America. We need ot argue about the unAmerican nature of allowing the ACLU to impose censorship on Americans.

(11) Jake made the following comment | Dec 26, 2006 6:04:01 PM | Permalink

These redneck hypocrites can pray all they want anywhere else. They use their fascist version of Xtianity like the sewage treatment plant uses those awful deodorants: to cover the smell of s**t. These theocons, or Cracker Christians, spend most of their time trying to shove their fascist version of Christianity down people's throats. As a conservative Jew, This is a secular governmetn and country and these fascists are bad both bad christians and democrats
It's really disgusting to hear the richests, free-est most powerful Xtians in the world whine about oppression because someone criticized them or they took the Ten COmmandments out of a courtroom. Oppressed, like blacks, Jews or Christians in Sudan?

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