Appearing on CBS’ Face the Nation yesterday, Newt Gingrich advocated dispatching U.S. marshals to haul federal judges before Congress to explain controversial rulings, citing what has become his favorite example of judicial overreaching.
take the case of Judge Biery. I think he should be asked to explain a
position that radical. How could he say he’s going to jail the
superintendent over the word “benediction” and “invocation”? Because
before you could — because I would then encourage impeachment, but
before you move to impeach him you’d like to know why he said it.
So what’s the deal with Judge Biery? Last May, the agnostic parents of two students in the Medina Valley Independent School District a few miles west of San Antonio brought suit to stop what they considered to be official promotion of religion by the district in various forms, but immediately in the high school graduation ceremony about to take place. Among their objections was that the graduation program listed a student-led “invocation” and “benediction” as parts of the ceremony.
It’s been clear since the Supreme Court’s 1992 Lee v. Weisman decision that the Establishment Clause bars clergy from offering prayers as part of an official public school graduation ceremony. And it’s been clear since the Court’s 2000 Santa Fe v. Doe decision that the Establishment Clause also bars school-devised arrangements for students to offer prayers at official school functions such as football games. So it was well within established Establishment Clause jurisprudence for U.S. District Judge Fred Biery to grant an injunction requiring Medina Valley to remove the words “invocation” and “benediction” from the program and to prohibit students from leading the assemblage in prayer:
The District, through its officials, shall instruct the students previously selected to deliver the “invocation” and “benediction” to modify their remarks to be statements of their own beliefs as opposed to leading the audience in prayer. These students, and all other persons scheduled to speak during the graduation ceremony, shall be instructed not to present a prayer, to wit, they shall be instructed that they may not ask audience members to “stand,” “join in prayer,” or “bow their heads,” they may not end their remarks with “amen” or “in [a deity’s name] we pray,” and they shall not otherwise deliver a message that would commonly be understood to be a prayer, nor use the word “prayer” unless it is used in the student’s expression of the student’s personal belief, as opposed to encouraging others who may not believe in the concept of prayer to join in and believe the same concept. The students may in stating their own personal beliefs speak through conduct such as kneeling to face Mecca, the wearing of a yarmulke or hijab or making the sign of the cross.
You’ll note that the judge is at pains to make clear that student speakers can use their moment in the public eye to testify to their own religious beliefs.
Subsequently, a panel of the Fifth Circuit vacated the injunction, on the grounds that the plaintiffs had not shown that they were “substantially likely” to prevail at trial, and that in any event the school district had agreed to remove “invocation” and “benediction” from the program. Meanwhile, the lawsuit proceeds. Given that Anthony Kennedy, the swing justice on today’s Supreme Court, voted with the majority in both Lee and Santa Fe, I say that there’s a substantial likelihood that plaintiffs will prevail if the case goes that far.
That it should have caused a minor uproar in Texas six months ago is no surprise, given that the state attorney general took the school district’s part and that Sen. John Cornyn and Gov. Rick Perry piled on. But it’s taken Newt Gingrich to turn it into Exhibit A for eviscerating judicial independence. Maybe that’s because, unlike so many of his peers, Newt is not a lawyer.
Historian that he is, however, he might have reflected on public reaction to FDR’s proposal to add additional justices to the Supreme Court after the court declared a number of New Deal programs unconstitutional. As enthusiastic as the country was about the New Deal, it hated the idea. Just because you don’t like the rulings doesn’t mean you get to change the rules.