I thought some Dissent the Blog readers might enjoy reading transcripts from my recent deposition in connection with the “Westphal v. Wagner” prayer lawsuit.The organization “Americans United for Separation of Church and State” is assisting a group of faculty and students (I was the last to join), challenging some of the South Orange County Community College District’s “religious” practices, such as trustees giving invocations at commencements, etc.
For my depo, Mr. M (of Mayer Brown) was my attorney. Mr. V (of Jones Day) represented the district (a group that includes the seven SOCCCD trustees, Chancellor Mathur, and Saddleback College President Tod Burnett).
What follows is a small portion of a seven-hour deposition:
MR. V: . . . Did anyone require you to stand during the invocation?
A I've never been given that directive.
Q Okay. It's true, is it not, as an adult you can make your own mind up and decide to sit during the invocation if you wanted to, that was within your ability?
A Yes, but you do pay a price when you feel that you're among the very few or perhaps the only person sitting.
Q What price do you pay?
A Well, you are made to feel that . . . you're somehow different and excluded from the standard.
Q Okay. And how is sitting during an invocation different than writing in your blog your views on invocations? How does one . . . point yourself out any more than the other?
A I just don't understand your question at all.
Q Sure. Let me ask it – you say, if you sit you feel like you're an outsider and you may show other people that you're an outsider?
A Well, I think life is complicated and things can sneak up on you. And you find yourself not wanting to participate in religious rituals or things that partake of religious rituals, and you suddenly find yourself punctuating your behavior in a way that you don't even understand by standing or by sitting and you … aren't able to immediately reflect on what all that means. And it's an annoying burden to have to go through that. And the reason I have to go through it is because [the district] impose[s] religiousness through these prayers.
Q But my question was: You can sit if you want to sit; right?
A At a price.
Q Right. And the price is?
A It's hard to say. I wish I had an opportunity to write you an essay about it because that's what it would take to express my view about that. I would say at the very least I feel that [public] institutions [that engage in invocations] … are saying it is normal to be religious and that offends me because I think our society is based on a kind of agreement to disagree about religious questions.
Q And how is sitting during an invocation more of a – or singling yourself out if you sit during an invocation than writing in your blog your views on invocations to the whole world?
A Well, I don't know the answer to that question. I have no feel for what you are getting at. But when I write, it is a practice. It is a well understood practice, writing. Writing is taken in certain ways. Writing is one thing. Being in a room with other people is quite another thing, depending on what room it is, what the occasion is.
I feel strongly that if I were to sit when everyone is asked, “please stand up for the invocation,” for me to remain seated, I feel [it] would be like waving a red flag. That's the way it feels to me. It's not that I want to participate. But I know I don't want to wave a red flag in the face of these good people that are standing around me. To me it comes out of a sense of community and politeness.
And so I really don't know … what you're talking about. I can't compare the two at all. They are dramatically different things, writing an essay to be published in a newspaper or a blog or standing with people in a room.
Q Well, … the concern is, as you said, singling yourself out, waving a red flag. I mean, how is that act where only the people in the vicinity of you could see you sitting, less of singling – less singling yourself out than writing a blog and telling the world how you feel?
A Again, I don't understand your comparison. When I write on the blog I am participating in an institution of dialogue and discourse and there's a whole etiquette attached to it. There's a sense of what it means to do something like that. There's a sense of “if you don't want to read it, you don't have to.” You have to actually go out of your way to read my blog. It doesn't come to you. I can't even begin to compare the two situations.
I can tell you this: I feel that I'm very polite on my blog the way I write. The kinds of editorial judgments I have made, and I think that it strikes me as a difficult, almost a dilemma, when I'm at a board meeting and I'm asked to stand up to participate in an invocation because I don't want to participate and I don't want to wave a red flag. I feel that I have to choose. And what I usually do in that situation is I just stand and … to the extent that it's possible for a person to stand without joining in prayer, even though everyone else is apparently doing the same thing, joining in prayer. But, again, it's a dilemma forced upon me and it doesn't seem to be … right….
Q You're not concerned about singling yourself out, Professor?
A I am. I am.
Q I mean, you write a blog where you express your views on invocations?
A In that sense, I am not at all bothered about singling myself out. I have no problem expressing my views and even knowing, which I sometimes do I suppose, not often, that they're unusual views. I have no problem with that, but when you're standing with people in a room, many of whom you know and you respect and you like, for some of them the prayer is a meaningful thing, for some of them. And for me to sit there might seem offensive and I'm aware of this and I don't mean to give offense. I don't like it that the only option I have is to stand up, but I do. I'm not happy with it because I think by standing up I am, in some sense, participating in this event and I don't wish to do that but I'm given no alternatives, I'm stuck with a dilemma.
Q You can sit, that's an alternative
A Well, maybe you can but I try to be polite around people and I feel that – I don't want to upset people who are just there to do something that's meaningful to them. I don't have the time to explain to them that I respect that, but I must now not participate in this. I don't have the opportunity to do that. So I'm stuck in a kind of – a kind of rhetorical dilemma where I cannot express myself. I don't have the occasion or the time at the moment. It's in the middle of a meeting and so it seems to me, for me, a matter of civility and politeness.
Q Well, you can express yourself, you can talk to them after the meeting, you can talk to your colleagues after the meeting; right?
A Well, I can't talk to all of the people who see me sitting there.
Q Right. Well, you can write it in your blog if you wanted to?
A Well, … most of them do not read the blog.
Q How do you know that?
A Well, I'm guessing.
Q Right. In fact, your blog is – the intended audience of this blog is the Saddleback faculty?
A No.
Q And the Irvine Valley faculty?
A That's right, it is the district community. That's the intended [audience]. Now, I'm perfectly aware that not everyone in the district community reads my blog.
Q And, in fact, before your blog, you would deliver in their mailboxes … your views. And so – and you understood that your views may be offensive to some of your colleagues?
A I was not, of course, attempting simply to express my views. Again, I was attempting to improve discourse and making people more informed. And, again, my views are secondary at best in my publications.
Q And, in fact, you're not concerned when you put the "Dissent" in your colleagues mailbox about whether they may disagree with what was written; right? That wasn't a concern of yours, anymore than it was a concern whether you would stand or sit during an invocation?
A Well, I don't understand why you're telling me what I think. I know what I think. And it was – it is a concern now and has always been a concern to me when I am with people that I know that in some cases are my friends and some cases they're [just] people I respect. Yeah, I am aware of how my actions will seem to them and especially when I might perform an action that might be misinterpreted in a way that causes them offense. You and I may be very different, but to me that would be on my mind. Now, there's an institution, there is a practice of discourse and it is such that people are aware that you can express your position and your views and people have a right to do that, and they do it in this kind of setting [blogs, newspapers] exactly and if you don't want to read it, you don't have to.
Q And, in fact, you said earlier that pretty much everyone knows your views; right?
A Those who are aware of the issues and the history, recent history of the district, yes.
Q And your friends know your views, your friends in the faculty?
A They do.
Q Right. Then why would it be a concern for you to sit if your friends already knew your views and you didn't want to offend one of your friends?
A When we have district events they are district events, they are not IVC events and many of them occur at Saddleback College where I have fewer friends. Nevertheless, though I know … few of these people I respect them.
Q And then you said you are always polite in your blogs, you try to be polite?
A In my opinion, I offer views that … I try to argue for a position. I think that there are some people who are so unaccustomed to the traditions of discourse that they fail to perceive satire and things like that.
Q You call people “assholes” and “idiots” in your blog?
. . .
MR. M: Objection; only to assholes and idiots.
BY MR. V:
Q Do you call people “assholes” and “idiots” in your blog, yes or no?
A Oh, I'm trying to remember. I think that I have attributed assholery and idiocy to people, yes. But you have to understand that that's done in the context of a publication that has long dabbled in satire.
Q Okay.
A I have a personal ethic about it. I only call people “assholes” when they are assholes.
Q And “idiots” when they're idiots?
A “Idiots” understood in a way when you use that term in everyday language.
Q And you don't think that sets you out – your blog doesn't set your views out for the world to read when you call someone an “asshole” or an “idiot”?
A I don't think I call people that. I would say that I use that terminology in a subtle satirical setting that would be understood by a sophisticated reader who has read the blog over time. I would also say that I have done less and less of that if we look at the spectrum of time from '97 to the present.
Q Okay. We'll look at some of the recent ones. I mean, what would you say less and less? When did you think you – when did you think you stopped the practice of calling people “assholes” and “idiots”?
A Well, I never stopped the practice because it has never come to me as an issue in that way. I just have a vague perception, a sense, that I have engaged in that kind of satire less.
Q Okay.
A And, again, I have always followed in my mind the principle that you only call an “asshole” an asshole and a non-asshole shall never be called an “asshole.”
Q Now, is it your view, Professor, that if you had your druthers you would not have to hear invocations at public events?
MR. M: Well, objection as to vagueness of “public events.” I think you mean government-sponsored events.
MR. V: Sure. That's fine.
BY MR. V:
Q Let me adopt your counsel's question. If you had your druthers would you like it not to have to hear invocations at government-sponsored events?
A I would not ever put it in the language of “druthers.” I think it's a violation of the sense of civility that's at the core of our society that we agree to disagree about religious matters—for the government to be establishing or imposing religiousness.
22 comments:
You should get another week of Spring break to make up for the time lost at this deposition.
You might remind folks that the words "idiot" and "asshole" are in dictionaries. Their entries include spellings of the words, pronunciation guides, parts of speech, formation of the plurals, definitions, and etymologies. These words are part of this language and possess a long ancestry.
These questions are scary in that I think they questioning your right to free speech.
I think Mr. V may be a kind of idiot..."...druthers..." It's not about that. Keeping religious activity out of government-sponsored events is not a "win" for those who are not religious, nor is it a "lose" for those who are. It's not about whose preferences win out. We all win when government-sponsored events are neutral on religion, protecting our ability to meet as equals without discomfort, discrimination, or embarrassment. Why do people not get this??
ES
People don't "get" it, ES, because you're wrong. The constitution does not require government officials to be silent on the subject of religion. If a minority can silence a majority on this subject or any subject when the majority is not acting unconstitutionally, there is a loss for free speech. We all "lose" under those circumstances, not win.
Why don't you folks get the liberty component of this issue? It's about freedom. In a college setting, it is anti-freedom and anti-academia to insist that certain ideas, references or discussions be off limits just because they are allegedly uncomfortable for someone.
I did not say officials were required to be silent, I said events must be religion neutral. Participants do not have to treat religion as "off-limits" or taboo, nor do they have to pretend to not be religious. But government cannot promote, or appear to promote, a religion. Actions of government officials are not just personal actions, and can be seen as endorsing or promoting a certain religion when they do such things as perform religious invocations at government-sponsored events, or invite others of particular faiths to do so.
This is not about a minority "silencing" a majority. The constitution already protects the minority from the majority, by requiring government not to promote or favor any one religion, and this minority is simply fighting to get these particular officials to act accordingly.
ES
Anon at 9:27 needs a reading class.
ES, you're just wrong on the law. Everything you say is all well and good and fine for you to advocate to change the law. But it is not the law currently. That ends the discussion. Until you change the law, the government officials are well within their first amendment rights. Too bad you don't like it, but how typical it is of the left to try to shut up speech it doesn't like.
Who's shutting up who here? - ha. Chill out, babe. Dang.
Clearly SOMEONE's prayers have been answered - hence the passionate defense. One wonders what was prayed for - and who did the answering.
Who's shutting up who here? Well, let's see: Karla and Alannah and Margo and Clair and Roy and Ashley and LM and unnamed students are asking to shut up Don and Tom and John and Dave and Nancy and Marcia and Bill and Raghu and Tod. Seems pretty clear.
Now why are Karla and Alannah and Margo and Clair and Roy and Ashley and LM and unnamed students trying to do this? Because they don't like what Don and Tom and John and Dave and Nancy and Marcia and Bill and Raghu and Tod are saying. Also seems pretty clear, babe.
See? Answered prayers!
I am not "the Left", and I was raised in a very religious household. I have studied the constitution, and have carefully read the case law on religious freedom, and the concept of a "wall of separation" between the church and the state. I do not believe that I am "just wrong on the law". This is going to get tedious if I have to start looking up and citing that case law for you, but I'm not wrong and this discussion is still in play.
ES
No no no thwarted prayers, endangered prayers - that's what's going on!
Plus the public face means a lot to these types - and this person must prove loyalty - hence the attacks.
Don't feed it ES - its hunger is never satiated.
But it is important for people to understand this about their own constitution - the truth is important, and very comforting, actually. I'm afraid that the issue is so emotional that many people cannot look at the facts. I'm always telling religious people that the wall of separation is there to protect them from the state. It's all fine and dandy to have government prayer, until you look up one day and the prayer has changed and your religion is not the official one anymore, and you have to participate in some other religion that is now in the majority. Keeping the state out of religion was a genius gift to us all from the founders of this country, and religious people would foolishly throw it away...ES
By putting their religion into the state, religious people open the door for the state to have a say in their religion. The founders of this nation knew that, and that is certainly one of the reasons for the "wall of separation" that they so carefully constructed for us.
ES
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
— The First Amendment to the U.S. Constitution
Nobody's saying that Don and Co. can't pray. The point is that government officials, as government officials, shouldn't be "establishing" religion. They establish religion when they proceed as though the public were theistic. It ain't rocket science.
And why religious people have a problem with that is beyond me...
ES
Isn't the reference to Jesus in the opening prayers/invocations alluding to one religion? If it were truly not about ONE religion that wouldn't be there. What about people standing in prayer at the events that don't believe in Jesus? Isn't that imposing one religion on another rather than freedom of religion? Go ES!! Excellent discussion and argument!
3:06: One or two of the plaintiffs in this case are religious, but they are not Christian. They are offended by the imposition of what appear to be Christian prayers and rituals (and video presentations) by some trustees and district officials.
Someone above seemed to suggest that the 1st Amendment allows government officials, including trustees, to say anything they want. Not so. As a trustee of a public college (district), Don Wagner is a representative of the government, and, as such, there are things that he cannot do or say. For instance, during a board meeting, he may not advocate the harassment of, say, Mormons at the colleges. Further, he cannot, as trustee, act to further religion or a particular religion. It is quite plain by the very structure of the 1st Amendment that, though individuals are free to speak their mind, individuals who, during portions of their day, are government officials must restrict their speech in a manner consistent with the establishment clause and the "free exercise" clause.
I just want to say, too: excellent job, ES and BvT! And BvT, you were magnificent at the deposition: subtle, thoughtful, insightful, civil, intelligent. You put that rat-bastardy lawyer to shame. Beautiful job.
MAH
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