WHO IS FOR LIFTING THE COURTS' BANS ON PRAYER?

 ²³² See, e.g., Lyndsey Layton, Graduates Split Over Invocation in Calvert:   Senior to Forgo Mention of God, WASH. POST, May 26, 1999, at B4 (describing the intervention of the Maryland ACLU to prevent a student's prayer at a high-school graduation exercise).   At times, righteous censors threaten a lawsuit as a means of preventing public scrutiny of reality, working a ban on offensive speech by prior restraint.   E.g., Bunis v. Conway, 234 N.Y.S.2d 435, 440 (N.Y. App. Div. 1962), appeal dismissed 237 N.Y.S.2d 993 (N.Y. 1963) (holding that "declaratory judgment actions" are appropriate to prevent "the creation of an extralegal system of censorship by the local police or prosecuting authorities," where the county prosecutor had threatened to prosecute a bookseller if the bookseller sold a copy of Henry Miller's Tropic of Cancer); Dearborn Pub. Co. v. Fitzgerald, 271 F. 479, 482, 486 (N.D. Ohio 1921) (granting the newspaper's preliminary injunction, ordering the city to stop threatening a lawsuit to censor racist statements, and saying "the limit of the city's power would be to conduct a prosecution for the specific offense thus committed, and not the establishment of a censorship in advance of publication").    (back to text)

 ²³³ Layton, supra note 232, at B4.   In instituting the nation-wide bans on prayer, the ACLU serves as a surrogate for the state in both a quasi- legislative function and in a quasi-judicial function.   Id. (stating the official ACLU position that "prayers at school-sponsored events violate the constitutional separation of church and state no matter who leads them" and quoting Suzanne Smith of the Maryland ACLU in the act of extending the federal courts' rules banning prayer: "Having students lead [prayer] doesn't lessen the entanglement."); id. (reporting the ACLU's out-of-court intervention to enforce the ACLU's out-of-court expansion of the federal courts' bans on prayer, following a complaint by a student who wished to ban prayer from his graduation ceremony).   In threatening to sue to stop the speech that the federal courts have not explicitly banned, the ACLU violates the Constitution in an informal censorship by prior restraint.   See Bunis, 234 N.Y.S.2d at 439 (stating that an official who threatens an obscenity prosecution for selling a book that the courts have not found to be obscene has "imposed an informal censorship" in violation of the First Amendment; Chandler v. James, [* Cite to F.3d when published, or to LEXIS; Summary in West's Federal Case News, Volume 22, Number 31, July 30, 1999, complete text on FindLaw *] 11th Cir., No. 97-6898, July 13, 1999, Part III, near n.17 (vacating a federal court injunction against student-led and student-initiated prayer at a public- school official ceremony, and holding "that genuinely student- initiated religious speech must be permitted") (emphasis in original).    (back to text)

 ²³⁴ See, e.g., Bunis, 234 N.Y.S.2d at 438-39 (explaining that, where there is no question of what "factually occurred or what is factually proposed to be done," a declaratory judgment is an appropriate remedy to determine whether an official's action is constitutional in using the threat of a lawsuit to ban a speech by prior restraint); Zeitlin v. Arnebergh, 383 P.2d 152, 155 (Cal. 1963) (concluding that a city attorney who threatens to sue the speaker for making the speech that the court has not yet ruled as "obscene" becomes a mere "indirect censor of public reading matter"); id. (finding that a declaratory judgment is appropriate where a censor works a prior restraint through threatening a lawsuit); id. at 165-66 (examining the empirical evidence filed with the complaint asking for declaratory judgment and determining that the Tropic of Cancer is not "hard-core pornography" as a matter of law).    (back to text)

 ²³⁵ See supra Part II (arguing that, consistent with current federal court definitions, rulings, and findings, there can be no injury from prayer unless the federal courts violate the Constitution by establishing the dogmas of "religion," such as by accepting plaintiff's unsubstantiated claim: "My god is angry at me when I hear a Protestant Christian prayer").    (back to text)

 ²³⁶ Heretofore, the Court has granted standing to ban prayer by adopting as true someone's religious beliefs about injury, contrary to available empirical and non- religious evidence--hardly, a non-religious standard for injury.   See, e.g., Schempp v. School Dist., 177 F. Supp. 398, 403 (1959) (basing the parents' standing on their having an interest in the "spiritual and religious development" of the children); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 208 n.3, 224 n.9 (1963) (noting that the school children and their parents "are directly affected by the laws and practices against which their complaints are directed," but offering only religious arguments for finding an injury from the "Lord's Prayer" and not from the "Pledge of Allegiance to the Flag" when the empirical evidence indicated that the children's peers hurled the same hurtful political insults, such as "un-American" or "atheistic communism," either for refusing the Lord's Prayer or for refusing the Pledge of Allegiance to the Flag).    (back to text)

 ²³⁷ See, e.g., Schuster v. U.S. News & World Report, 459 F. Supp. 973, 975 (1978) (stating that summary judgment is particularly appropriate for defendant when plaintiff sues merely because of an injury from what a speaker says), aff'd, 602 F.2d 850 (1979); Schuster, 459 F. Supp. at 978-79 (finding that additional evidence would not assist in determining whether defendant's actions caused an injury that the law would remedy, and granting defendant's summary judgment motion because any injuries plaintiff suffered were "not legally cognizable").    (back to text)

 ²³⁸ See supra Part III (recounting the Founders' religious beliefs that gave rise to the Establishment Clause and to the Free Exercise Clause).   The federal courts have no non-religious reason to separate the churches from the states over the objections of the voter majority.   Compare supra Part I (summarizing the non-religious bases for finding an injury from speech) with supra Part II (identifying the religious reasons offered to find that mere speech causes injury).    (back to text)

 ²³⁹ See supra Part I.A (recounting the over-three-hundred-year task to get courts to look to the empirical facts on the danger of actual harm rather than to the speaker's intent as a measure of injury).    (back to text)

 ²⁴⁰ See supra Part IV.A (summarizing the empirical evidence that the Supreme Court ignored in leaping to the incorporation of the Establishment Clause); supra Part IV.B (detailing the empirical evidence that the Supreme Court ignored in banning teacher-led "prayers" from public schools); supra Part IV.C (outlining more than a thousand pages of empirical evidence that the federal courts ignored in granting and confirming a summary judgment motion banning the "balanced treatment" of creation and evolution in biology classes).    (back to text)

 ²⁴¹ See Board of Educ. v. Barnette, 319 U.S. 624, 632 (1943) (arguing that the flag and the crucifix operate by the same mechanism--by providing a "short cut" in communicating "from mind to mind"); id. at 632- 33 ("A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.").    (back to text)

 ²⁴² TRIBE, supra note 33, § 7-2, at 549 (characterizing "states' rights" as the "champion" of slavery).    (back to text)