Tuesday, November 23, 2010

Special Thanksgiving Case of the Week - COTW #17

With the holiday this week, I'm releasing the Case of the Week for Wednesday email distribution. The holiday to which I am referring is, of course, Thanksgiving. This week's COTW is a little different from the usual employment law fare. It is a Supreme Court case from 1992, Lee v. Weisman, 505 U.S. 577, holding (per the syllabus) that: "Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause." What the heck does this have to do with Thanksgiving?

Well, Justice Scalia penned a blistering dissent (does he author any other kind?) in which he reminded the majority that:
The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions . . . but since the Court is so oblivious to our history as to suggest that the Constitution restricts "preservation and transmission of religious beliefs ... to the private sphere," it appears necessary to provide another brief account.
Subtlety has never been one of Justice Scalia's strengths! He went on to provide some of that history and tradition:
Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch:
"The day after the First Amendment was proposed, Congress urged President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God.’ President Washington proclaimed November 26, 1789, a day of thanksgiving to ‘offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions....' "
This tradition of Thanksgiving Proclamations - with their religious theme of prayerful gratitude to God - has been adhered to by almost every President.
Indeed, George Washington's 1789 Thanksgiving Day Proclamation is replete with religious references to Almighty God, "that great and glorious Being," and the "great Lord and Ruler of Nations," but also praised the blessings of "civil and religious liberty." And courts to this day struggle to draw lines preserving the rights of individuals to thank God (or not), and prohibit the government establishment of religion.

For a brief history of Thanksgiving and how some of our other presidents marked and contributed to our modern Thanksgiving traditions, please read last year's Lawffice Space post, Thanksgiving as a Federal Holiday. Thank you for reading and regardless of how you celebrate the holiday, have a happy Thanksgiving!

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.