“Fundamental rights may not be submitted to vote”: The Freedom from Religion Foundation calls out Lebanon’s School Board and Superintendent

June 3, 2014 • 6:21 am

Below is a copy of the letter that the Freedom from Religion Foundation (FFRF) sent yesterday to the Superintendent of the Lebanon, Missouri School District, as well as to all members of the Lebanon School Board. The author, FFRF Staff Attorney Patrick Elliott, lays out on pages 2 and 3 the legal case (and the precedents) for Principal Lowery’s speech constituting a violation of the First Amendment.

Oh, and I’m delighted to be cited in a footnote with reference to Kim Light’s misguided accusation that I wrote my post using the resources and time that should be devoted to my day job. I bet Mr. Light is having second thoughts about that.

Page 1 Page 2

Screen shot 2014-06-02 at 5.40.34 PM

Screen shot 2014-06-02 at 5.40.47 PM

I am not a legal expert (I just report possible legal violations to those who are experts), but my guess is that the Lebanon School Board will cave on this issue, and perhaps even apologize for Principal Lowery’s speech. If they don’t, and given the presence of someone with standing (the “local complainant”) as a possible plaintiff, they’ll face expensive litigation, which they’ll lose, and then have to pay substantial court costs.  They should really consult their lawyers.

Oh, and all those people who wrote me about what the Constitution really says on the Principal’s speech: read the letter above and then lick your wounds.

I must add here that Hemant “The Friendly Atheist” Mehta now owes me drinks, unless he wants to contest the case law cited by Elliott.

Finally, I’d urge people who approve of interventions like the above to join the Freedom From Religion Foundation (full disclosure: I am on the honorary board), which is, to my mind, the most activist and effective secular organization in the U.S. You can join here, and it’s only a paltry $40 a year. For that you get—besides the satisfaction of knowing that your money actually works for secularism instead of enabling a bunch of keyboard warriors—an awesome and meaty monthly newspaper that details the organization’s activities, cases, and also gives a lot of amusing quotes from religious people, as well as a selection of the FFRFs own hate mail, which is far nastier than mine.


111 thoughts on ““Fundamental rights may not be submitted to vote”: The Freedom from Religion Foundation calls out Lebanon’s School Board and Superintendent

  1. Conservatives seem to be fanatics on the constitution until they’re not. They think it was written in pencil and that if it involves religion, the 1st amendment can be rewritten at will

    Thank you Prof Coyne. Excellent work here, and at BSU.

  2. Nice letter.

    Oh, and all those people who wrote me about what the Constitution really says on the Principal’s speech: read the letter above and then lick your wounds.

    Having just browsed the comments on the related threads, I didn’t actually see many people disagreeing with you, and IIRC Lee vs. Weisman even got mentioned by one of the commenters.

    I think you and Hemant have already figured out the most likely result: the school will settle, and the settlement will involve something to the effect of “the school does not admit to any illegal conduct, but agrees to do better in the future.”

    1. I don’t think Jerry was talking about comments on this website. I believe he was talking about the emails and phone messages he received on this issue.

      1. Ah. Well I don’t think many of them will read it. And if the resolution happens as I suggested above (“…the school admits no wrongdoing but will prevent similar things from occurring in the future…”), those folks will probably see it as a victory.

        Which suits me fine. If they want to declare victry but it never happens again, I’d be content.

        1. It’s that “request written assurances that Lebanon High School and the […] District are taking steps to ensure that religious rituals are not part of graduation ceremonies or any other school-sponsored events” line where the threat lies.

          Those steps are going to have to be spelled out and specific and significant. It’s going to mean that the district has gotten assurances that Lowery in particular knows what he did that was worng, and those assurances will have to be believable. That’s going to mean a full public apology, and not a not-pology. If he doesn’t do so, and if the board doesn’t fire him in response, then the gloves come off.

          The school’s only alternative to admitting wrongdoing at this point is a crushing lawsuit that they’ll lose, likely long before it gets to trial.



          1. I think the odds of an apology are pretty remote. The way US settlements goes, the corporations, agencies, or people in the wrong are almost never required to admit any wrong-doing as part of the settlement.

            1. Lacking an admission of wrongdoing on his part, there are no assurances that he won’t continue in the prohibited action. And the FFRF made pretty clear that, lacking such assurances, the case is going to court. If it goes to court, the district will wind up begging for mercy.

              This wasn’t accidental nor negligent, not a slip o’ th’ tongue in a moment of passion. This was his prepared commencement address to the graduates. And he explicitly stated in his speech that he knew that what he was doing was unconstitutional but that he was going ahead with it anyway.

              It wasn’t even the CTO and the CFO talking over the water cooler how it’d be more profitable to pretend they didn’t get the engineer’s safety memo. It was the equivalent of the president’s letter in the annual report to the shareholders that they were going to stop installing seatbelts in new vehicles because he didn’t like people telling him what to do.



              1. “Lacking an admission of wrongdoing on his part, there are no assurances that he won’t continue in the prohibited action.”

                And given the questions in the strength of their case in light of Greico, and the fear that a bad ruling would lead to a rash of graduations with principles doing the “have a moment of silence and let me tell you what I thought” dance, the FFRF would be insane to not accept a change in the Board’s policies even without an admission of wrongdoing (which it will never get and is not necessary anyway.)

              2. The board doesn’t have to admit wrongdoing on their own part. At this point, aside from an ill-advised email from one of the members who almost certainly wasn’t acting in an official capacity, the worst they can be accused of so far is failing to anticipate that one of their principals might go apeshit at his own commencement. Unless he told them that that’s what he planned on doing, that’s not something they need to apologize for.

                But they do have to make clear that what Lowery did is unacceptable, and that Lowery himself agrees with them that what he did is unacceptable. (And not, “I’d do it again except that they’d fire me if I did,” but rather, “I now understand the error of my ways and wouldn’t do it even if given the opportunity.”) Or fire him if he doesn’t. Or prepare for one giant can of legal whoop-ass being opened on them and the district if he doesn’t repent and they don’t fire him.


              3. “Lacking an admission of wrongdoing on his part, there are no assurances that he won’t continue in the prohibited action.”

                Huh? The assurance would be something like a letter sent to all staff (by the board) stating that no school official will pray or give the appearance of prayer at future graduation ceremonies, or they’ll be fired.

                I am not sure what your corporate or bureaucratic experience is, Ben, but its extremely common practice for bureaucracies to change a policy to prevent some repeat action, without ever actually admitting someone (specific) did something wrong. I am surprised anyone would claim that no possible fix could happen without a personal admission of wrongdoing; such fixes are done all the time.

              4. The difference here is that the offender committed the offense in public as part of his official duties with a significant amount of public attention focused on him as a result — and that his entire offense was explicitly put forth as an act of defiance.

                When the executive head of <whatever> goes out of his way to go on record flipping the bird, silently adding a paragraph to the HR manual about the diverse cultural sensitivities of various hand postures just doesn’t cut it.


              5. ” Or prepare for one giant can of legal whoop-ass being opened on them…”

                Except that the real world doesn’t work this way.

              6. Did you not notice the several cases cited in the FFRF’s letter? Or do you not consider, for example, recent SCOTUS decisions against exactly what the Principal did to be a giant can of legal whoop-ass?


              7. Since it’s not the early 1990’s, I’d say that nothing is, any longer, any kind of “whoop-ass.”

                But I’m talking about your position that the FFRF can, would or should demand that this principal admit to wrongdoing, rather than simply accepting a change in policy.

              8. Well said and spot on! That was my take too. He knowingly, willingly and very intentionally violated the Constitution. I think the principal should be held accountable. He needs to be charged in a court of law for what he did and pay consequences. An apology from the school district for his actions would not satisfy me. They would have to penalize him or I would need to see him charged!

  3. I encounter more and more religionists who insist that the separation of church and state is by definition for the protection of religion from interference on behalf of the state, but that religion has full access to influence state matters.

    I don’t know how this concept evolved or why is it so prevalent an idea.

    1. I don’t know how this concept evolved or why is it so prevalent an idea.

      Years of being lied to by politicians, priests, and right wing talking heads?

      The ‘one way wall’ argument (fallacy?) I have seen goes back at least to arguments I’ve had since the mid-80s.

    2. It’s a well-known process called ‘paradigmatic analogy’, producing a conflation in their minds of the First and Second Amendments along these lines:

      A well regulated theocracy, being necessary to the salvation of a Christian Nation, the right of the people to pray to Jeebus and display the Commandments in public buildings, shall not be infringed. Under God.

      …and just as the gun nuts think the declared purpose of 2A is so they can fight guerilla war against the Guvmint just as soon as the End Times are unmistakeably upon us, so lying and all kinds of sneakiness are justified in protest against state-sponsored atheism.

  4. I wish they had pointed out that Mr. Light’s email questioning whether you were using your work email, was sent from Mr. Light’s work email address (a bank).

    1. No, the bet was whether the Principal’s act was a violation of the First Amendment. My GUESS is that they will apologize, but as for not doing it again, we don’t know. I have information that this kind of religious proselytizing is a far deeper problem at Lebanon High school than simply what the principal said at graduation. The only way that can be stopped is for a student or someone else at the school to complain.

        1. I think you’d be surprised Kieran of just how often someone will stick their neck above the parapet to involve themselves in an unpopular but constitutionally correct stance… even in the face of terrible personal criticism and vitriol. I had the great honor of discussing such citizen bravery with Lauri Lebo who extensively documented the Dover Area Schoolboard case, and lived in Dover herself. The individuals (eg. Tammy Kitzmiller) who involved themself showed a tremendous bravery to become exposed to intensive public abuse – they are in my opinion as courageous as any soldier who fought in wartime. Perhaps more so. We owe such individuals a great debt for the freedoms we enjoy, which they so bravely stood up to preserve. I wouldn’t at all be surprised to again see someone of this ilk come forward in this particular case.

      1. Unless you had a different private agreement, the bet as you wrote it was that the school board would back down. They haven’t yet, so it’s still premature to claim you’ve won the bet.

        “I’ll bet Hemant $100 that the school will back down when it receives the inevitable legal warnings. ”

        And btw, there’s a loophole to the wording which could lose you the bet. The arguable word is “when”. What if the school does back down but after a protracted back and forth. It could be weeks or months before they back down, that it would be quite reasonable to argue that they did not in fact back down WHEN they recieved the legal warning but only after a long fight.

        1. I suppose you could also dispute whether the legal warnings were truly inevitable. Maybe they were evitable after all? Get Dan Dennet to weigh in!

      2. I’m not surprised that prosletyzing has gone on elsewhere in that school. If that’s the principal, he’s letting teachers get away with it too, or maybe even encouraging them

  5. At one stage, I was persuaded that going after In God We Trust was a petty grievance and a misallocation of energy. But as indicated by “If you’re ever in doubt, just take a quick look at our nation’s currency…” religionists use the little stuff as foundation for the big stuff.

    1. I’ve always liked the ‘it’s on the money’ angle. It’s as if they acknowledge the Constitution but money is something we worship.

      1. My standard reply is, “I’ll give up using money when you give up using modern medicine.” L

    2. I’ve heard that meme several times. It really does give the impression that we have an official religion, so it should go!

  6. Like Jerry sez…. If you aren’t a member of FFRF…. join!

    Best membership I’ve ever had.

  7. In response both to Prof. Coyne’s mail from angry and benighted Lebanese Christians and the new post on the FFR’s letter of notice: feeling is so much easier than thinking, and a popular understanding in the U.S. is that feeling is self-validating, not only not requiring a rational overview but forbidding it.

    This habit of irrationality is rooted in the evangelical program of a mighty wash of feeling that ‘remakes’ a person ‘in the blood of the lamb.’ This psychodrama is easily propagandized. And it works on a huge scale. Do you older citizens among WEIT recall when one could actually listen to good music and real news on fm stations between 87.1 and 91.9? The evangelicals have usurped almost all those frequencies (except for those few the Catholics have). The ‘public airwaves’? No. Long since, the FCC has steadily allowed licenses to Christian groups on the grounds that they will serve the public.

    And they do. But only A public. And in some cases that partial public now gets conservative politics along with the rest of the paraphernalia of fundamentalist, evangelical Christianity. ‘Moderate’ or so-called ‘progressive’ Christians are as rare as Moderate Republicans. The latter are going extinct, while the former turn their churches into social clubs.

    The rest of us–really numbering in the millions ourselves–mostly ‘just shake our heads,’ as Prof. Coyne puts it. Heartfelt thanks to WEIT and the FFRF. I hope I’ve got the gumption to get off my ass and do something too, starting with membership!

    1. “This habit of irrationality is rooted in the evangelical program of a mighty wash of feeling that ‘remakes’ a person ‘in the blood of the lamb.’”

      Re: Walt Whitman’s poem, “General William Booth Enters Heaven,” with the recurring, “Are you washed in the blood of the Lamb”? (If I correctly recall, Booth was the most notable leader – if not the creator – of The Salvation Army.)

      (This was set to a pretty high quality choral music composition by a former director of the Yale Glee Club, Fenno Heath.)

      1. Christian elitists are quite OK with these guys. People who are just smarter than they are, even if not holding that fact over anyone, are just … elitists!

        Evangelicals are very insecure intellectually.

      2. On can be AN elite, where “elite” is a noun, as compared to an elitist, also a noun. “Elitism” and “elitist” apparently are pejorative terms. What would be a non-pejorative term/noun involving “elite”?

        An “elitist” practices “elitism,” right?

        So, what noun name describes what (a member of) the “elite” practices?

  8. It’s delightfully ironic to see a Christian apologist happily point out that the name of God is found on American money, even though his cherished Jesus specifically said that one cannot serve both God and Mammon. Jesus even pointed out that it’s Caesar’s face that’s found on coins, not God’s, and that the two should have nothing to do with each other.

    But of course, that’s Jesus the socialist. Probably not the one Conservatives pray to.

      1. Not quite true; they also very frequently quote the half-verse from Ephesians, “Wives, submit to your husbands.” This is ordinarily followed by a wave of giggles sweeping the room.

  9. In civilized parts of the country, Lowery’s antics would be grounds for immediate termination. Gross insubordination, flagrantly unconstitutional action, placing the district in significant legal and financial jeopardy, haranguing students, that sort of thing.

    If the board really wants to do the right thing, they should inform Lowery that they’re prepared to accept his resignation. Expressing regrets over the necessity of the matter and the like are just fine, and even a bit of face-saving expression of admiration for his steadfast commitment to his personal values.

    But the man really needs to go.


    …not that Lowery should be at all surprised or upset. After all, in his speech he not only fell on his own sword, he gleefully thrust himself upon it and begged the powers that be to twist it. Who are the board to deny him the martyrdom he so clearly dreams of?



      1. There are plenty of corners (>4) of AZ that are uncivilized, i.e., conservative-Xian-NRA-types. And there are an awful lot of reasonable people shaking their heads at the insanity held within those corners.

    1. I get the other reasons, but not insubordination. AFAIK he didn’t disobey any order from a superior, because no such order had been given to him.

  10. Is there anyway in the US of holding public officials personally liable for costs involved if they acted in way they can reasonably be expected to know was unlawful ?

    They cannot, I think, argue that they are not aware such prayer is unlawful since in their positions they can reasonably be expected to know.

    1. I think not, unfortunately. After all, the electorate voted them in and ultimately own the consequences of that decision.

      (Excluding non-official crimes, of course…. an official can be busted for traffic violations, assault, etc.)

    2. It takes an awful lot to get individuals personally legally responsible for actions they take in the course of their official duties, even when they blatantly act counter to those responsibilities.

      He can (and should) be fired by the school board for this. Students affected can sue the school district for redress of grievances, including both judicial orders to action and financial remedies, punitive as well as compensatory. But I can’t imagine a successful suit against the principal personally, and there’s nothing criminal I’m aware of that a prosecutor would charge.

      Basically, unless Lowery does an immediate about-face and offers abject apologies all around and the like, his career is over. If he doesn’t resign and the board doesn’t significantly discipline and / or fire him, the board is going to be dragged into court where they’ll get their asses handed to them, along with a bill with more zeroes on it than most people can comprehend. This case really is open-and-shut, and there’s no way that any judge is going to let a school principal get away with braging at commencement about how he’s shitting on the Constitution in front of the students’s eyes.

      So, the board can go down with the principal and take the district with them, or there can be many crocodile tears at a regretful parting of the ways as Lowery decides to spend more time with his family or pursue alternatives outside of academia or whatever.

      My money’s on the latter, but I wouldn’t at all be surprised if the board first plays a game of chicken before their own lawyers pound some sense into them.



      1. It’s a strong case, but it is not open and shut, after Greece v. Galloway, especially if that case is read as requiring the application of the coercion test.

        1. Greece v Galloway applied to government bodies opening sessions with a prayer, something that’s reprehensible but has precedent going back to the very first US Congress. In contrast, there’s very extensive case law keeping prayers out of schools.

          If teachers are prohibited from opening student assemblies with a prayer, and if students are even prohibited from volunteering to open student assemblies with a prayer, there’s no way in Hell that the principal can get away with giving a sermon as part of his commencement address.


          1. Yes, I know the facts of that case. The point, though, is that a court could see Greece’s emphasis on coercion as being the constitutionally relevant factor, and decide that the principal telling the assembled persons what his thoughts were during the “moment of silence” does not arise to the level of coercion found in Lee. I don’t think that probable, but it is possible.

            1. My point is that it would overturn incredible amounts of precedent already set in public school cases.

              Yes, the courts can do anything they damned well please. But I can’t imagine any appellate court, at least, seeing any applicability of Greece to public schools.


              1. It wouldn’t have to be overturning it; merely distinguishing the cases on the facts.

              2. You need to re-read the FFRF’s letter. In particular, Principal Lowery said, “I ask God to protect these students as they go their separate ways into the world. I ask God to reveal himself in every possible way and I ask God to watch over them, to protect them, and to bless them with self-fulfillment, with compassion, inner peace, and personal prosperity.”

                That is a prayer. He prayed that prayer at an official school function — graduation, no less.

                There is no way to grant Lowery the right to pray at graduations without overturning the mountains of case law prohibiting anybody from praying at school functions.

                And, no. Courts aren’t fooled by things such as, “I’m not praying. I’m just saying words, and if you think that that’s praying that’s your own problem.” When phrased as Lowery did elsewhere in his his address, it’s an open admission of not merely guilt but obstinate defiance, and courts take an especially dim view of such contempt for the law.



              3. That’s the way it’s phrased in the FFRF’s letter, but I listened to the video that’s posted, and I agree with the transcript at Hemant Mehta’s site, where the “I ask” were actually “I asked”, which is in keeping with his intent to tell the audience what he thought during the “moment of silence.”

                But while I agree that the Court is unlikely to draw a fine distinction between praying and discussing a prayer in determining whether there is a violation, I don’t think it’s a slam dunk. I do think that the distinction — the fact that he didn’t phrase it as a prayer, but as a statement about what he was thinking during the moment of silence — may become very relevant to the question of qualified immunity for this individual.

                But if the court does draw that distinction, then I think there is a chance (not at all likely, but possible) that they could find this statement, or at least some statements along these lines to be Constitutional. (For example, if the principal simply said, “While I would like to say a prayer, I legally cannot. It used to be permitted to ask God to bless these children as they go out into the world and to watch over them, but we may no longer do so. So, instead, I’m going to wish them well…” I could see a Court saying that that is okay as a non-establishment discussion about a religious subject. The distance from that statement and the one made by the principal here is not that big, in my opinion, especially if the Court looks to whether there was actual coercion.

              4. Courts are notoriously intolerant of “wink wink, nudge nudge” attempts to evade direct and unequivocal orders. If this goes to trial and that’s the defense they run with, and the judge (at least at the appellate level) doesn’t slap the district down incredibly hard, I’ll buy an hat just so I can eat it.



              5. I really doubt intent of the principal is going to hinge on the tense of a verb. If I’m asked not to type this comment, claiming I typed it won’t fly.

              6. “direct and unequivocal orders.”

                What direct and unequivocal orders? Cite a case in which the principal held a moment of silence and then discussed what he thought during that moment. If you can’t (and I’m more than certain that you can’t), then there is no “direct and unequivocal orders.”

                What you have a case in which there may or may not have been a constitutional violation. (I’d say probably, but no absolutely.) And you have the issue of whether the specific violation was clearly established at the time. And since there is no per se preclusion against talking about religion or discussing one’s religious beliefs, that’s a much closer question.

                Which, I guess, is just another way of saying what I said before, that this is not an open and shut case.

              7. “I really doubt intent of the principal is going to hinge on the tense of a verb.”

                If the question is whether he is actively praying or merely relating what he thought, the verb tense very well might be an issue. And because the nature of the qualified immunity test is whether the right violated was “clearly established,” one of the issues might hinge on that verb tense.

                Assuming that they conclude that he wasn’t praying, but merely talking about his silent prayer: the Court could decide (1) that the Constitution is not violated by that discussion, even though it would be if it were an actual prayer. (I find this result is unlikely.) Or it could find (2) that the Constitution was violated, but there is no clear precedent on the question sufficient to find “talking about what you prayed for” was “clearly established” at the time, in which case the principal is immune from suit. Or it could find (3) that the constituion was violated, and that it was clearly established that “talking about what you prayed for” was a violation.

                The verb tense would be dispositive in either (1) or (2) but not (3).

              8. You’re being far more forgiving than I can see all but the most parochial of small-town judges being — and even they’d know how hard they themselves would get rebuked for siding with the district on a case like this.

                Prayer by officiants at school functions is forbidden. The principal not only bragged about praying; he gave a sermon on the importance of prayer. And he made explicitly clear that it was his intention to impress upon the students the importance of prayer and service to God.

                No court is going to buy any bullshit lines about winking and nudging. That YouTube video is going to get played; the judge is going to grant the district one last opportunity to do what is honorable; and come down on the district like a ton of bricks if they don’t.



              9. Perhaps I should clarify. You raise some intriguing points about whether the tense of the verb matters, but in context of this specific case, I really don’t see the relavence.

                The principal is using “asked” to describe his actions for five to ten seconds before after a speech clearly meant to invoke his views on religion being an integral part of our history. (I’ll leave the claim that God and religion are separate things alone for the moment.)

                As the FFRF points out, he conflate “politically correct” with violations of the Constitution. Under my lay understanding of our legal system, the spirit of the law matters. Principal Lowery clearly seemed to imply that he thinks the only issue here is political correctness, generally interpreted as implying one thing while literally stating another. Had he been reminiscing about some past personal experience, I think he still may have been violating the a first Amendment, but in a different way. There’s not any reasonable interpretation of his words that would indicate he’s not promoting prayer and religion while acting as a Government representative. The tense doesn’t matter because he’s referring to his actions at the same event: I.e. praying while holding an audience captive and then outlining precisely what that prayer was.

                I don’t know whether he is a Biblical literalist, but there is certainly some irony here in his literal interpretation of legal actions.

              10. “like a ton of bricks”

                Only if the judge has watched too many bad television shows…

                I don’t think that the judge is going to side with the district. I stated that repeatedly. What I think the judge will do is consider the positions of the parties and — recognizing that there is no per se excluding a person from discussing God or religion at a graduation ceremony — seek to define where the line is between improper prayer and permissible discussion.

                The judge will then have to decide whether this principal went over that line, (which I think the judge will) and whether, if he did, it was clearly established at that time.

                The last of these is the most interesting question to me, because it does appear that this principal was aware of the law and was attempting to formulate an address whereby he could discuss these issues but not run afoul of the law. I do not think he succeeded, but I also don’t think that what he did was clearly established as a violation at the time. so I think there is a chance that he will be entitled to qualified immunity.

              11. there is no per se excluding a person from discussing God or religion at a graduation ceremony

                You continue to repeatedly assert this not merely without any supporting evidence but in spite of overwhelming evidence to the contrary.

                And that’s doubly true since the Lowery went out of his way to repeatedly make the point that he wasn’t merely engaging in an abstract academic sociological exercise; he was, in fact, praying over the students. Right there in front of them, just now, while all y’all had your heads bowed in silence, he prayed over them, and here’s what he prayed and why and here’s why it’s so important that you open your hearts to God.

                Why do you keep trying to make what Lowery did seem not merely permissible, but entirely reasonable? More to the point, why are you insisting that he didn’t do what he himself explicitly said was the whole point of what he did?


              12. If it is your contention that there is a per se rule, then cite the case.

                And I am not trying to make what he did some reasonable. I am merely analyzing the legal issue the way I see it.

                If you are so threatened by the fact that someone has a different opinion than you do, feel free to pretend that I said that the judge was going to drop a ton of whup-ass on him or whatever, if it’ll make you feel better.

              13. @chrisbuckley

                I think the relevance of the tense lies in the fact that he would likely argue that while prayer is unquestionably not permitted, that in the absence of a per se rule that says no discussion of God or religion is permissible, that logically there must be some line between impermissible and permissible discussion.

                While, as I said, I don’t think he was on the constitutional side of the line, I believe that he would argue that the discussion of a past mental, silent prayer (even one that was just completed) is not unconstitutional because it does not call for the audience’s participation and that, therefore, the coercion which the Court has discussed, regarding these issues, isn’t present. Thus, the tense is important because, I think he would argue, it distinguishes between an improper present prayer, and a permissble discussion of a past private prayer. I don’t believe the argument would hold water, but I think that’s why he would consider the tense important.

                At the very least, I believe he would argue, the fact that he was technically not praying but merely talking about a previous prayer should lead the court to find that the violation was not “clearly established” and that, therefore, he would be entitled to qualfied immunity.

                Further, I think he would argue that his comments regarding “politically correctness” and his discussion about what was unconstitutional merely indicated that he was aware that there was a line and that he was attempting to stay on the legal side of it, even if he failed to do so.

                (And we know what the other side would argue, as the FFRF essentially lays out their entire argument in the letter. And for the record, I think that he would probably lose on the issue of whether his comments were unconstitutional.)

                I believe that while the spirit of the law is important, the technical aspect is moreso and sometimes issues such as these can turn on small things like the tense he used.

              14. Well, you’ve certainly laid out the case for how a legal team might hone in on the tense, but it also seems you recognize the distinction between using it as a defense and it actually mattering. You seem to agree that the principal was on the wrong side of the law regardless, so I’ll stand by my original statement that the tense doesn’t matter in this specific case.

                I also think that if it were brought up, there’s at least a couple of issues: 1) Was it a private prayer; and 2) Was he using the past tense intentionally to refer to his prayer as having prayed in private?

                For the first question, in a strict sense, it was private. We certainly wouldn’t want to go down the road towards having thought police. However, I wouldn’t think there’s a significant distinction between thinking something and saying it out loud and thinking it and then saying what you thought 5 seconds ago. Imagine a parallel scenario where a white supremacist thinks about threatening to commit a hate crime and then says, “While I was silently contemplating future actions, I decided that I should threaten minorities and I thought about planning to lynch a man this Saturday.” Certainly, the issue of whether this constitutes a threat wouldn’t hinge on “decide” vs. “decided.”

                For the second question, I don’t see a cogent argument for the use of the past tense to distinguish between a past action and one in which he actively concocted a scheme to hold an audience captive while praying in public as a Government representative.

                Maybe this will go to court and maybe it will establish a firmer precedent for this sort of thing. Certainly, finding acceptable would open the door to all kinds of absurd loopholes. Would saying the “Our Father” with a qualifying clause of “While we were silent, I thought, ‘Our Father, who art in heaven, hallowed be thy name…'” then be sufficient as a defense?

              15. For the first question, in a strict sense, it was private.

                Except that, at the instant that he announced what he prayed about, it ceased to be private.
                It still could happen that a religiously motivated justice might accept the kind of sophistry we’re discussing here but I can’t see how any disinterested party would be fooled by it.

              16. @Chris Buckley

                I don’t think it will “matter” in the sense of making a difference in the ultimate determination if it ever gets to a court. I think that there was a constititutional violation here. But was using “matters” in the sense that it will form the major issue of contention in the argument and the issue for the court. So I think we are just looking at it from different angles.

                As for your two questions, the first, I think, will come down to how strictly the Court views “prayer.” As a technical (or maybe gramatical) matter, I don’t think he was technically praying, because the intended recipient of the communication was the audience, not a diety, so I think he was discussing a prayer he had just made. Does the public discussion of a prayer that one just made (especially in the depth he did) make it a prayer? That would be the big issue, and I can see very good reasons why a Court would not want to even attempt to answer the question.

                The second, though, is the more interesting one, in my mind. While I think that this was so far to the “looks like a prayer, smells like a prayer” side of the ledger to be found Constitutional, what a court has to grapple with (in this case or one similar to it) is the competiting constitutional issues: on the one hand, there is the Establishment Clause issue and on the other hand is the First Amendment Free Speech issue. That comes down to this: because the school is a public school, the Establishment Clause’s limitations apply. However, because there is no per se bar on discussing God and religion in a graduation ceremony. (For example, I don’t think anyone would find it unconstitutional if the speaker said, “I’m sure these kids and their parents are thinking, ‘Thank God high school is over. Bring on College!!'”) As such, the speaker has a First Amendment right to be free of restraint in his speech on this subject up to the point at which the balance shifts from one interest to the other. Defining that line is, to me, the most interesting part of this case.

              17. If we were to grant you all of your arguments and the court agreed with you and found in favor of Lowery and the Lebanon board, the immediate result is that, all across the country, teachers would open classes with a moment of silence followed by sermons, exactly following in the model of Lowery.

                Therefore, all your arguments are in favor school sermonizing.

                Why you should think those arguments are valid or worthy of serious consideration is utterly beyond me, Chris, and most everybody else here.


              18. @Kevin, yes I agree that once he spoke about it, the thoughts absolutely ceased to be private. That’s certainly one of my main contentions here.

                @Morris, now that you clarified, we are using “mattered” in a different sense. I still prefer my narrower sense, because one could really say any argument a lawyer wants to put forth “matters” in the sense that it still needs to be contemplated and dismissed based on its merits (or lack thereof).

                Your previous comments did make me think a bit more deeply, and now I think that the strongest point against any of this being relevant is the question I put forth at the end of my last post; i.e., if a qualifying or conditional phrase is attached, does that then open the door to talking about anything the speaker sees fit?

                This would seem to be absolutely absurd and make a mockery of all past cases regarding promotion of religion. Unless you think there’s a significant distinction to be made, I see no difference between what Principal Lowery did and a speaker who says, “In that moment I thought, Hail Mary, full of grace…” or “In that moment I thought, “Allahu Akbar! I asked Allah to convert all infidels and end the need for jihad,” or any other religious utterances one could think of.

      2. there’s no way that any judge is going to let a school principal get away with braging at commencement about how he’s shitting on the Constitution in front of the students’s eyes.

        Ben, I’d like to agree with you but the current Supreme Court has re-affirmed that ultimately the Constitution means whatever the judge says it means.

        1. I also worry about this sort of thing getting up to the SCOTUS. There are five lunatics living there and they would be only too happy to overturn decades of settled law.

        2. I don’t think even Scalia is ready to actually permit school principals to pray at graduation. I could see him joining a minority opinion arguing for it just to tweak everybody’s nose, but, if the other eight were indisposed and the decision left to him alone, I very much doubt he’d actually have the balls, or even the desire, to follow through.


          1. That is a game of chicken that I hope never happens.

            I wouldn’t be surprised if a local judge, if it were first tried at that level, would judge in favor of the school board. Similarly absurd rulings have occured recently, the most recent earlier this year in Alabama if I recall. Of course it wouldn’t stand up to the next round and the judge would likely be chastised.

    3. Maybe something you want to borrow from us this side of the pond. If a local Councillor can be shown to have knowingly(*) acted in a way he or she knew to be unlawful then they can, if a court approves, be held personally liable for the any costs that occur as a result.

      It is not used that often, mainly because it is an expensive process and most councillors would not have sufficient assets to make it worthwhile. However they could be barred from elected office for a period.

      (*) It is not necessary to show that the individual knew their actions were unlawful, just that a reasonable person in that position should be expected to know.

    4. Technically yes, they only get qualified immunity from personal prosecution when they are acting “on the job” and doing things a reasonable person could interpret as job-related. However, the courts tend to give a lot of latitude to public officials in this. So you would probably have to show that he knew he was breaking the law. I think this is unlikely – I think his “trick” of doing the moment of silence but then talking about praying afterwards shows that he was trying to stay within the letter of the law (while also trying to break the spirit of it – but that isn’t illegal).

      AFAIK, qualified immunity tends to go away fast only in the really cut and dried cases, like embezzlement or drunk driving. Stuff nobody could “misunderstand” to be acceptable on the job behavior.

  11. Jerry,

    I am not sure if this is the proper place to post this but there is an even more bizarre religion/evolution situation developing now in Israel. The government has decided to introduce evolution as a mandatory topic in middle schools BUT without mentioning human evolution, in order not to offend Orthodox Jews: http://www.timesofisrael.com/darwin-enters-israeli-schools-but-humans-left-out/ .

    It will be interesting to see how this works out. They can discuss natural selection in all other animals, but not in hominins, or at least not in Homo sapiens. So where will they draw the line: at chimps? at great apes? at primates? at Glires? I hope squirrels and cats will be OK to study.

    1. Where do Neanderthals, Homo Erectus, Homo Habilis, Homo Ergaster, Homo Heidelbergensis, and the various Australopithecines, fit it to this?

  12. FFRF now has one more member.

    I actually am not into legal issues concerning separation of church and state, but I do not respect people when their fundamental epistemology is wrong. The time is over for people to proclaim that they know something about the universe without applying even a modicum of scientific principles.

  13. I have been following this story and am glad to see the FFRF involved. I’d like to add to this conversation that students (even those like me getting an MTh!) can join the FFRF for only $25.00.

    Professor Coyne: thanks for covering this in your blog.

  14. Technically, Patrick Elliott is a keyboard warrior. He is just really smart at knowing which keys to press.

  15. I hope they have the good sense to put a stop to the shenanigans. They would set a good example for their students if they did.

  16. My money would be on some variation of the classic “I am sorry if anyone was offended” unapology.

  17. But, but, but it is well-known that the more you pay in legal fees, the more you love god! Works for the collection plate too.

  18. The FFRF letter puts to rest the debates in the other threads regarding the principal being an “invited speaker.” It doesn’t matter. They can’t invite a speaker to proselytize or pray either.

  19. Principal Lowery, quoted by the FFRF letter: ” . . . “The Star-Spangled Banner, written in 1814 by Francis Scott P. . . . .”

    Francis Scott “P.,” eh? Lowery actually said “P.,” and not “Key”?

  20. As a resident of this innately backwards town, I can tell you, whether the school district caves or not, the end result will be the same. The community will go into god overload, posting and ranting everywhere, pushing it harder and fasters on everyone they can.

    It is saddening, lebanon is located on historic route 66, has a national landmark at Bennett Springs State Park, and you would think being located on I-44 and outside a major military installation, they would be more accepting and inclusive, yet they couldn’t be further from it. It has a history of racial and religious bigorty.

    The community seems to hate all things different, but what can you expect from a small town, that has over encompassing 70 churchs.

    I sincerely hope this will give others in my community to stand up and be heard. To let others know they are not alone, and they don’t have to put up with it.

Leave a Reply