Gasp! NYTimes covers the heart of Kennedy’s argument!

Let’s hear it for The New York Times, a newspaper that can always be trusted to get key information on both sides of hot religious and cultural debates into print.

Wait. Say what?

Actually, in contrast with the CNN Belief Blog editorial that our own Jim Davis parsed this morning, the basic Times news report on the Supreme Court’s Town of Greece, New York v. Galloway, Et Al decision (.pdf) does a pretty good job of allowing readers to hear voices on both sides of this important debate.

The bottom line: This story managed to mention one of the most crucial questions facing the justices, which is, “Is nonsectarian prayer possible?” And after that question comes another church-state puzzle: Who is in charge of determining whether any given believer’s sort-of-free speech is nonsectarian enough to pass muster with state officials?

As always, the crucial swing vote in this 5-4 decision belonged to America’s uncrowned king, Justice Anthony M. Kennedy, a pro-business moral-libertarian country-club Republican who is to some degree an American Catholic.

Readers quickly learn some important facts:

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion. …

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” …

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

The situation in Greece, N.Y., is pretty familiar. Town officials insist that all kinds of people are welcome to line up to give prayers — atheists included — but, as the story notes, in practice “almost all of the chaplains were Christian.” Some believers have even made references to offensive concepts such as Jesus dying on the cross.

This has, of course, offended some citizens who have lawyers.

As CNN noted, Kennedy argued that the U.S. Constitution does not guarantee that citizens will not be exposed to offensive speech. At that point, as journalists covering this story have noted, Kennedy added several layers of history to his argument. To no one’s surprise, other justices found clashing themes from America’s complicated religious history to toss right back at him.

This leads to the crucial material in this story. While it’s located pretty deep into the text, the fact that it’s in the report at all is a plus.

Let us attend.

In a long footnote, Justice Kagan disputed that assertion, saying some of the most prominent members of the founding generation — George Washington, Thomas Jefferson and James Madison — took pains to keep sectarian language away from public life. “The demand for neutrality among religions is not a product of 21st century ‘political correctness,’ ” she wrote, “but of the 18th century view.”

But Justice Kennedy said legislative prayers may have sectarian content and need not “be addressed only to a generic God.” He added that it would be perilous for courts to decide when prayers crossed a constitutional line and became impermissibly sectarian.

“To hold that invocations must be nonsectarian,” he wrote, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”

If only Kennedy had used the word “entangled.”

Once again, journalists are finding themselves in “equal access” terrain, as mapped out by the remarkable left-right church-state coalitions of the Clinton White House years. The key is that state officials, when faced with these kinds of First Amendment tensions, face three options.

They could, in this case, ban all forms of prayer or pre-meeting editorializing (or all forms of religious holiday decorations on courtyard lawns, to cite another example), equally with no discrimination shown toward a particular form of speech. They could also say that a forum has been created in which as wide a variety of voices as possible can be heard, with no favoritism or animosity shown to a particular point of view. That appears to be what Town of Greece leaders have said they are trying to do, while some citizens have continued to be offended.

However, what the state cannot do — the key Kennedy quote points to this — is allow or even require government officials to become involved in setting guidelines for what kinds of prayers are created, approved and/or sponsored by the government and which ones are not. The government must avoid “entanglement” in these doctrinal questions, thus protecting the separation of church and states.

Is it asking too much for trained Supreme Court-level reporters to have recognized the “equal access” content of this dispute? Maybe. Maybe not.

However, whatever one thinks of Kennedy’s point of view, this quote is central to his argument — pointing toward a clash over why government officials should suddenly be empowered to vote thumbs up and thumbs down on the content of prayers in the public square.

And there is that question again: Is nonsectarian prayer possible? Try to imagine a prayer that is not offensive to, well, atheists or Southern Baptists, Unitarians or Muslims, tenured professors at Ivy League schools or Catholic Supreme Court justices (especially those who go to Mass).

Oh, and Kennedy did say that there ARE doctrinal limits on acceptable prayers in this public setting.

Justice Kennedy did suggest that some prayers may be unacceptable if offered consistently, including ones that “denigrate nonbelievers or religious minorities, threaten damnation or preach conversion.” But without proof of “a pattern of prayers that over time denigrate, proselytize or betray an impermissible government purpose,” he wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”

But once again, note those phrases such as “offered consistently” and “patterns of prayer over time.” In other words, at some point free speech can turn abusive. However, giving officials the power of the state to define what doctrine is acceptable in public life and what doctrine is unacceptable is illiberal and offensive, period.

That’s the heart of Kennedy’s argument and, thus, that content needed to be included as one — repeat ONE — essential point of view in mainstream news reports on this decision.

Bravo to Times editors for getting that part of the argument into print. Did anyone see that quote in other mainstream reports?

IMAGE: Part of the “lawgivers” frieze at the U.S. Supreme Court.

About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Ray Ingles

    Overall fair, but I think you missed one thing. If you had written “Some have even made references to offensive concepts such as Jesus dying on the cross on government time. This has, of course, offended some citizens who have lawyers.” with the italicized addition, I’d have been almost satisfied.

    It’s not the concepts that are offensive, it’s the venue they are being expressed in that’s the problem for some.

    • Brett

      Well, while the idea that Jesus was on government time when he was dying on the cross is a little unorthodox and probably tough to support, I don’t know that I’d find it offensive.

      • wlinden

        I assume that executions are on government time, or it would just be lynching.

      • Ray Ingles

        Cute, though you have to ignore the second paragraph to misunderstand it like that. Any comments on the actual point, though?

        • Percy Gryce

          Your stylistic miscue obscured your point. Don’t blame us.

          • Ray Ingles

            I don’t think it “obscured” it so much as it gave people an out to avoid addressing it. But if that’s all you want, I guess you got what you were looking for.

          • Ray Ingles

            There are no readers so unreachable as those who don’t want to be reached.

            Still, let’s test your assertion. If tmatt had written “Some have even made references on government time to offensive concepts such as Jesus dying on the cross. This has, of course, offended some citizens who have lawyers.” with the noted changes, I’d have been almost satisfied.

            It’s not the concepts that are offensive, it’s the venue they are being expressed in that’s the problem for some.

          • wlinden

            And the concepts are the problem for others.

          • Ray Ingles

            wlinden – Er, which “others”? Who’s argued that, especially legally in this case?

          • Jane Dunn

            Ray Ingles — The plaintiffs in this case argued that many of the prayers were “offensive” because they violated their religious or philosophical beliefs. After plaintiffs complained to the town, the next chaplain’s prayer actually castigated the “minority” who opposed the legislative prayers as “ignorant” of our country’s history. While it may be difficult to see why some of the prayers were considered offensive, it doesn’t take much empathy to see why that one in particular was offensive. Likewise, while we may not take note of such language as “let us all bow our heads” or “our prayer” or “we pray,” it can be like a knife to those whose beliefs direct them not to participate.

            As a Christian, I have mixed feelings about the results of this case, but I think we need to take seriously the fact that each of the four dissenters is a religious or ethnic minority. Until I moved to a part of the country where I was in the minority I did not fully appreciate what outsider-ness can feel and look like. And even then, as a white English-speaking Protestant, my outsider status would never be as complete in the larger American culture as some of my friends.

          • Ray Ingles

            You’re putting the word ‘offensive’ in quotes, but not giving me concrete cites to the context. In particular, I’d like to have a cite of a plaintiff saying that – in tmatt’s exact words – “Jesus dying on the cross” is “offensive”.

          • Jane Dunn

            Ray — I assumed you had read the opinion. I put “offensive” in quotes because the opinion quoted the Plaintiffs as using that specific word in their Complaint and also stated that the Plaintiffs’ declarations (affidavits) in the trial court asserted that the prayers gave them offense. IMO, the first sentence of my comment adequately explains the context, but feel free to disagree.

            The full quotes using the word “offensive” and “offense” are too long and difficult to copy and paste into a comment. But, you can find them at pgs. 7 and 25 of the PDF (not the printed pg. ##s) of opinion to which tmatt links above.

            The discussion at pg. 7 quotes a prayer regarding the “celebration of Holy Week” and referring to “saving sacrifice of Jesus on the cross.” The opinion then states Plaintiffs found these prayers “offensive.” I’ve also skimmed some of the briefs submitted by the Plaintiffs and it’s clear that they object to the substance of the prayers and not just the fact that they were taking place at a government meeting.

          • Ray Ingles

            The plaintiffs are cited in Kennedy’s opinion as saying the prayers were “offensive”, but not because of ‘Jesus dying on the cross’. I think I found the cite (No. 08–cv–6088 (WDNY)) and it states that Stephens finds all legislative prayers to be offensive, and finds that “sectarian prayers” are “more offensive than non-sectarian ones.” If I’m wrong, please direct me to the correct document.

          • Jane Dunn

            No, that’s the District (trial) Court opinion. Here’s the Complaint: http://www.oyez.org/town-of-greece/documents/Complaint.pdf

            As you will see from paragraph 66, Justice Kennedy was quoting the plaintiffs as I said and not just citing them.

            I also think it’s also pretty clear that, in addition to the fact that the prayers were being offered on government time, the plaintiffs were also offended by the substance of the prayers themselves. That seems to be the way Justice Kennedy saw it.

            The phrase “Jesus’ dying on the cross” is Mattingly’s so you won’t find those exact words in these documents, but I think that shorthand summary of one of the things the plaintiffs were objecting to was pretty accurate.

            More specifically, the Complaint quotes many prayers, including four from a Father Bradshaw. The second of his prayers, at paragraph 39 of the Complaint and at pg. 7 of the Supreme Court opinion, specifically said “[w]e acknowledge the saving sacrifice of Jesus on the cross…. Jesus Christ took away the sins of the world, he took away our death, through his dying and in his rising, he has restored our life.” After the fourth of Father Bradshaw’s prayers, Galloway stood up in that same meeting and described the prayers as offensive. See paragraphs 65-66 of the Complaint.

            Galloway is Jewish, see para. 5, and for lots of people of Jewish faith the claims made by Father Bradshaw and others are blasphemous and the subject of Jesus’ dying or sacrifice can be a very sensitive subject given that it is the source (for Christian heretics) of generations of anti semitism.

            I’m not sure why you find it hard to believe that some non-Christians can find the subject of these prayers offensive regardless of where they are given. Certainly some Christians are offended by the substance of certain Muslim prayers or atheist sayings. Witness the recent uproar over the new “Noah” movie. Some would say there is even a whole conservative Christian outrage industry for things that offend them. (And, yes, the left has some of its own outrage peddlers too.)

          • Ray Ingles

            She didn’t say that she was offended by “the saving sacrifice of Jesus on the cross”. What she said in paragraph 66 is: “I find that it is a promotion of religion when you have preachers come in here and say, “in Jesus Christ our Lord,” [or], “in the Holy Spirit.” This is a diverse community. There is [sic] not just Christians here. Yet in a number of meetings I have attended – this is not the first one – I have heard this. Supposedly we are considered a secular country, and thus we should not have a mingling of church and state. This is a board meeting of the Town of Greece, and by having this, you are promoting the Christian religion. And I find it offensive, I find it irresponsible, and I find it intolerable. And I hope this will be addressed because this not okay to have Christian religion introduced into our town board. There is a separation of church and state and it needs to be kept that way.”

            Note the emphasis on the separation of church and state, and that she didn’t object to “Christian religion”, but “Christian religion introduced into our town board” [emphasis added].

            I’m sure that “some non-Christians can find the subject of these prayers offensive regardless of where they are given”. What I don’t see is any evidence that had anything to do with this case.

          • wlinden

            ‘I’m sure that “some non-Christians can find the subject of these prayers offensive regardless of where they are given”.’

            Then why are you making such an issue of Terry’s reference to them as “offensive” in inverted commas? That is all I read him as saying.

          • Ray Ingles

            Because, as I pointed out the Jane Dunn, the way tmatt put it implies that “citizens who have lawyers” involved the lawyers because they were offended by the content of the prayers. Whether that’s true or not – and the quotes I’ve provided seem to indicate that it wasn’t a strong consideration – it’s very clear that the specific objection – the one the Supreme Court was addressing – was to such prayers on government time.

            As I, y’know, said. Repeatedly. Even to you. Recall “Who’s argued that, especially legally in this case?”

          • Jane Dunn

            You’ve reorganized the words to suit your purpose. But, I think it is clear from that paragraph, from the totality of the Complaint, and from the rest of plaintiffs’ arguments that they found the content of some of the prayers offensive. Are you really suggesting that they didn’t find the prayer that called them ignorant for objecting offensive?Clearly the majority read it that way.

            The plaintiffs repeatedly discuss the proselytizing nature of many of the prayers, which imply that those such as plaintiffs, who are not Christians, are going to hell. In their Response Brief they discuss the problem with the specific doctrinal substance of the prayers. See sec. II-C on pg. 52 of the PDF. http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-696_resp.authcheckdam.pdf

          • Ray Ingles

            I have not “reorganized the words”. Rather, I quoted them precisely and in full – indeed, it took a while to type them in, the first PDF you linked to is a picture, can’t cut-n-paste.

            However, I can paste from your second cite, to wit: “The objection to this choice is not merely a matter of taking offense, as petitioner assumes. Pet. Br. 47-48. It is that the citizen is pressed to participate in a prayer that conflicts with his own understanding of religion. The injury is not just to feelings, but also to conscience… Here, the objection is to being pressed to join in the prayers of others.” [Emphasis in original.]

            Whatever the feelings of the “citizens who have lawyers” about the content of the sectarian prayers, the reason the lawyers were involved was the venue of the sectarian prayer, not sectarian prayer simpliciter.

          • Jane Dunn

            Yes, you typed the quote correctly but then in your second paragraph you added words to part of a phrase and left out some other parts to make it sound like she was eliminating the idea that she was offended by any of the substance. Earlier she said “you are promoting christianity. And I find it offensive….” She didn’t say “only because it is being done at a town meeting.”

            Again, in the second quote, from plaintiffs’ Response Brief, you read right over the words “merely” and “not just.” Plaintiffs argue that it’s not *merely* offensive, and “not just” about their feelings. Thus it *is* in part about their being offended and about injury to their feelings.

            Your last paragraph makes no sense. Of course the lawyers are involved only because of the venue. Of course plaintiffs couldn’t sue if they had heard similar prayers on tv or on a street corner. But, that the lawyers could only get involved with the case because of the venue of the prayers has absolutely nothing at all to do with whether plaintiffs were offended by the substance of the prayers themselves.

            I certainly agree with you that there are no readers who are as unreachable as those who do not want to be reached. You haven’t answered any of my other questions, so I doubt you’ll answer this, but why does it matter to you whether or not the plaintiffs were actually offended by the substance of the prayers?

          • Ray Ingles

            Jane, I didn’t add anything to any phrase. Reread the long quote from paragraph 66. The phrase “Christian religion introduced into our town board” appears there exactly as I quoted it. Everything I surrounded with quote-marks is a literal quote. I highlighted a specific passage my second paragraph, but that was after I included the entire context because I think it makes my point for me.

            But, that the lawyers could only get involved with the case because of the venue of the prayers has absolutely nothing at all to do with whether plaintiffs were offended by the substance of the prayers themselves.

            Which is exactly my point. Whether or not they were offended by the substance of the prayers has nothing to do with the legal case. The case wasn’t that the pastors and such said anything offensive (though they may have). The case was about whether they could legally pray that way on government time. It doesn’t matter if any listeners were offended by the substance of the prayers, because the case was about prayers in that venue. Focusing on them taking offense is avoiding the subject.

            I personally think that reading the plaintiffs own words establishes that even they didn’t think any offense they felt was relevant. They were arguing about sectarian prayer in a government context, period.

            But I believe tmatt’s original phrasing – which is what I objected to, remember? – obscured that. The “on government time” bit is absolutely critical, and leaving it out is misleading at best.

            You apparently read their words and think they felt deeply offended by the content. I don’t really care either way, because – as the quote from your second link establishes – that wasn’t what they were arguing about in court. “It is that the citizen is pressed to participate in a prayer that conflicts with his own understanding of religion.”

          • Jane Dunn

            Uh, Ray, d’ya recall saying that “it’s not the concepts that are offensive”? Now you say you weren’t arguing whether or not the plaintiffs found the substance of the prayers offended them? I’m pretty sure that’s the definition of a moving target.

            >>>>Whether or not they were offended by the substance of the prayers has nothing to do with the legal case. The case wasn’t that the pastors and such said anything offensive (though they may have). The case was about whether they could legally pray that way on government time. … It doesn’t matter if any listeners were offended by the substance of the prayers, because the case was about prayers in that venue.<<<<

            — No, you're simply incorrect. Surely you realize that a case can be about more than one thing.

            First, the offensiveness of the past prayers, and the fact that the Town testified that future prayers could be as nasty as the clergy wanted to make them since the Town offered no guidance and no limits, was used to support plaintiffs' argument that the Town's prayer practices were coercive. One can't really be "coerced" into doing something that they don't find objectionable in the first place. Note that Justice Kennedy' discussion of the coerciveness (or not) of the prayers was not part of the majority opinion. It was a separate issue.

            Second the offensiveness of the past and potential future prayers goes to the issue of what legal remedy the plaintiffs sought.

            Third, it wasn't about what "the pastors could do" "on government time" or about the "venue" at all. The question at issue was what the *Town* could do. To confuse this critical point is to make the same fundamental error that Mattingly has consistently made about this case, which is that it's somehow about the rights of those uttering the prayers when it's actually about what the Town itself is doing.

            Finally, though I disagree with most of Mattingly's analysis on this and many other legal and journalistic matters, on this point he wasn't avoiding the issue at all. In fact, both his formulation and yours used the word "this" after sentences talking about both the substance of the prayers and the venue.

          • Ray Ingles

            Read the first three paragraphs of the complaint you linked to. That’s the summary, the essence of the legal complaint. It says nothing about “offense”. Instead, it argues that “By sponsoring persistently sectarian – and almost exclusively Christian – prayers, the Town Board has publicly aligned itself with a single faith… Making non-Christians second-class citizens in the body politic runs afoul of the United States Constitution.”

            Where in the complaint do they allege that any offensiveness was legally actionable? I can’t find it.

            Third, it wasn’t about what “the pastors could do” “on government time” or about the “venue” at all. The question at issue was what the *Town* could do.

            Why are those double-quotes around the words “the pastors could do”? I didn’t say them. If you use double-quotes, be very careful that you’re actually quoting me, please.

            That said, the distinction you make strikes me as quibbling. The case was about whether the Town could allow the pastors to pray in sectarian manner at government meetings, no? Either way, it’s about sectarian prayer on government time – in particular, the venue of a government meeting.

          • Jane Dunn

            Ray —

            I am lawyer. I’ve read the Complaint, the Town’s cert. petition, the plaintiffs’ response to the cert. petition, the Town’s initial and reply briefs, plaintiffs’ response brief, the district court opinion, the 2d Circuit opinion, and all the Supreme Court opinions in this case IN FULL.

            Please don’t try to tell me what specific paragraphs of the complaint signify when you have no idea of what you’re talking about. You seem to only read these documents sentence by sentence without regard to the whole. If you had read another few paragraphs you would find that each plaintiff specifically said she was “offended.” See paras. 7-8, and 66 of the Complaint. The first three introductory paragraphs of a complaint have no particular significance. The notion that the issues that make it all the way to the Supreme Court are limited to those three paragraphs is ludicrous.

            You also appear to have no idea what “legally actionable” means. As I said above, the allegations and legal arguments (which will not be found in a complaint) about the offensiveness of the prayers goes to the legal issue of whether the prayers were coercive, which they were using to try to distinguish the prayers in this case from those in the leading case, Marsh v. Nebraska. Sometimes allegations are in a complaint not because those specific acts or omissions are legally actionable in and of themselves but because they establish an element of a legal claim or to bring the case out of being governed by the general rule so that it will be governed by a rule that applies to exceptional circumstances.

            Just because you don’t understand the legal distinction between looking at what the pastors can do, as opposed to what the Town can do, doesn’t mean it’s not legally significant. The way you and Mattingly phrase the issue makes it sound like it’s an equal access case under the Free Exercise clause when in fact this case was a case about government conduct under the Establishment clause. That distinction has everything to do with which line of cases apply and, in Mattingly’s case, why the press isn’t covering the legal issues he thinks they should be covering.

            ps Not all quotes are about you.

          • Ray Ingles

            I am lawyer.

            Congratulations. Perhaps you’re even correct in this case. But if so, you’re not explaining yourself well.

            For example – yes, in paragraphs 7 and 8, they say they were offended. What, specifically, do they say they were offended by? By “the Town Board’s alignment with Christianity” – not the content of Christianity itself. And I already quoted Galloway’s words from paragraph 66 in full, and explained why they don’t mean what you or tmatt have claimed.

            ps Not all quotes are about you.

            Well, then, who are you quoting there? It’s not me, as I’ve stated. It’s not the Complaint, it’s not anyone in this thread or tmatt himself.

          • Jane Dunn

            LOL! Please recall it was your own imprecise writing that started this whole discussion. The problem isn’t imprecision on my part. Rather, it’s your insistence on using legal terms and concepts that don’t mean what you think they mean.

            Back to arguing the prayers themselves were not offensive are you now? You really should make up your mind. Yes, you’ve “explained Galloway’s words,” but “argue” and “allege” are not the same things as “legally actionable.” A plaintiff is not limited to arguing or alleging only facts or concepts that are what you want to call “legally actionable.” You’re just wrong.

            Additionally, the phrase “the Town Board’s alignment with Christianity” raises BOTH the potential issue of offense at the Town’s alignment with any religion AND the issue of offense over the specifics of Christianity. In legal practice, this is called “issue-spotting.” That you can’t spot the second issue doesn’t mean it’s not there. (Just like that chip on your shoulder about lawyers.)

            ps Quotation marks may properly be used for things other than direct quotes.

          • wlinden

            “Rather, it’s your insistence on using legal terms and concepts that don’t mean what you think they mean.”

            Ah, but that means it’s arcane terminology you lawyers made up with the sole purpose of confusing “normal” people. It is not possible that they are being used because they have precise meaning.

          • Jane Dunn

            Oh please. All professions and trades have “terms of art” that have a precise meaning within that field. It’s when people who don’t understand the precise meaning start using them that they can get themselves going down the wrong track. They assume the terms mean one thing, and then base their analysis on that false assumption, which usually makes their conclusions/analysis wrong.

            I’m always amused when an otherwise smart business person, who wouldn’t dream of allowing his non-doctor staff to take his appendix out, thinks nothing of having his non-lawyer staff draft his contracts. Of course, when that ends badly, as it so often does, it keeps us litigators in business. :)

          • Ray Ingles

            You’re still not explaining yourself well, I’m afraid.

            Back to arguing the prayers themselves were not offensive are you now?

            No, I’m arguing (a) that it’s not relevant to the case, and (b) you haven’t established, with any of your quotes or references, that they were. If you like, that the prayers are ‘innocent until proven guilty’ of offense on content, and – as I just pointed out again – the complaint doesn’t support your claim.

            A plaintiff is not limited to arguing or alleging only facts or concepts that are what you want to call “legally actionable.” You’re just wrong.

            Perhaps you should explain how that would help their case, though – arguing things without legal effect. Courts, to my knowledge, are not big fans of their time being wasted.

            the potential issue of offense at the Town’s alignment with any religion AND the issue of offense over the specifics of Christianity.

            You may have spotted that “potential” issue, but you haven’t actually substantiated that the second obtains in this case. What makes you think the potential is actual here? Specific references, please.

            Note that I could just as easily claim you have a “chip on your shoulder” about atheists or Jews, except there are two problems. The evidence for either your chip or mine is laughably weak, and more importantly a chip of either kind would not be relevant to the actual arguments. To quote C.S. Lewis, “I decline the motive game and resume the discussion.”

            ps Quotation marks may properly be used for things other than direct quotes.

            But if you’re going to jam paraphrases directly up against literal quotes, you’re going to sow confusion. I’m trying to help you out here. (Of course, I’m assuming that you actually want to communicate clearly. If that’s not your intention, please accept my apologies.)

          • Jane Dunn

            “No, I’m arguing (a) that it’s not relevant to the case”

            – That’s because you don’t understand how arguments and allegations work in a lawsuit or what “relevant” means. As I said above, plaintiffs argued that the offensiveness of the substance of the prayers (which they expressed by noting how some of the Christian doctrinal substance of the prayers was considered blasphemous) contributed to the extent of the coerciveness of the prayers. Then they argued the the extent of the coerciveness of the prayers should take the case out of the Marsh general rule allowing legislative prayer and put it into the category of coercive legislative prayers that should be banned. The majority decided instead to apply the general rule from Marsh.

            “If you like, that the prayers are ‘innocent until proven guilty’ of offense on content, and – as I just pointed out again – the complaint doesn’t support your claim.”

            – You may want to try typing that out again. On second thought, please don’t.

            “Perhaps you should explain how that would help their case, though – arguing things without legal effect. Courts, to my knowledge, are not big fans of their time being wasted.”

            – The problem is with “your knowledge.” That a specific allegation is not, by itself, “legally actionable,” does not mean it is “without legal effect.” For example, allegations may not be actionable by themselves, but they are included to try to make a case fit into one rule as opposed to another. Beyond that, you’ll have to go toss school on your own.

            “You may have spotted that ‘potential’ issue, but you haven’t substantiated how it obtains in this case.”

            – “Obtains” isn’t a legal concept, but I explained in my first paragraph in this comment how the plaintiffs argued this issue in this case. That they lost doesn’t mean the argument wasn’t part of the case.

          • Ray Ingles

            As I said before, “Specific references, please.” (And that is a direct quote.) Absent that, I think we’re done here.

          • Jane Dunn

            Horse. Water. Drink. Done.

        • Brett

          Nope.

  • Jane Dunn

    Just as one cannot properly report on stories involving faith or religious beliefs without having an understanding of the religious issues and disputes, one cannot properly critique reporting on legal issues if one does not have an understanding of the applicable legal issues. Unfortunately, this post, and at least a couple of others here on a similar case of a local government in Maryland, all misunderstand the applicable legal issues, which makes the analysis simply incorrect or inapplicable. I’m sorry, but, as an attorney, bad reporting or critiquing on legal issues bugs me just as much as bad reporting on religion bugs the GR bloggers.

    This post asks “Is it asking too much for trained Supreme Court-level reporters to have recognized the “equal access” content of this dispute?” Earlier posts on the Maryland case have raised the same issue and identified it as the key issue. As a legal matter, however, “equal access” has nothing to do with either the Town of Greece case or the Maryland case because those cases are claims under the Establishment Clause whereas the “equal access” issues (and case law) arise only under the Free Exercise Clause. So, yes, it IS asking too much for trained Supreme Court level reporters to have recognized the “equal access” content of this dispute.

    The NY case does not involve, as this post asserts, “prayer in the public square.” If you read Monday’s opinion, and the precedent in the earlier Marsh case, you will see that the speech at issue is “legislative prayer,” which is a form of government speech and which is a completely separate issue from a public forum (i.e., street corner, university quad) in which individuals seek to profess their religious beliefs. Thus, the “three options” analysis in this post and in the earlier ones on the Baltimore Sun’s reporting on the Maryland case is simply inapplicable.

    In addition, Justice Kennedy’s interesting language about the limits of legislative prayers (not of “free speech” as this post asserts) is probably not the “heart” of his opinion since it is in a separate section not joined by a majority of justices. And, since that language is not part of the majority opinion, it is not surprising that the NYT put that section well down in the article or that it is less likely to be covered in more summary reporting by other mainstream media. It was, however, in the Washington Post article on the opinion.

  • Tom Hanson

    The need for proofreading AS WELL AS spell-checking: Sit back, have a cuppa, then read the whole thing again before declaring that “the heard of Kennedy’s argument” is part of a properly finished essay.

    • tmatt

      Always glad to fix typos

  • Ikilope

    Get over the NYT bias — you read it as we all do because you and I know it is still the best newspaper in the country.


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