Sunday, May 11, 2014

Supreme Court Takes a Pass on Legislative Prayer

      Rajan Zed wore a traditional Indian kurta adorned with a gold scarf as he stood at the front of the U.S. Senate chambers on July 12, 2007, to deliver the opening prayer for the day’s session. Before the Hindu priest could begin, however, Sen. Bob Casey had to gavel three times for order and Capitol police officers had to remove and arrest three Christian activists who were protesting from the galleries.
       The Reno, Nevada, priest had been invited to deliver the invocation by his home state senator, Majority Leader Harry Reid. When news of his selection got out, however, the American Family Association, a fundamentalist Christian organization, sent out “an action alert” to protest.
      “This goes against all history and all tradition of our country,” the group’s president Tim Wildmon said in the message, according to the account in the Capitol Hill newspaper Roll Call. “This fella does not even believe in one god as the Constitution and Declaration of Independence speak of.”
      With order restored, Zed delivered his prayer, the opening seen here. Reid spoke from the floor afterward to thank him. “It speaks well of our country that someone representing the faith of about a billion people comes here and can speak in communication with our heavenly father regarding peace.”
      Later the same year, the small suburban town of Greece, New York, had its own controversy over the issue of legislative prayer. Two of the town’s non-Christian residents objected to the unvarying succession of Christian ministers invited to open the Board of Supervisors’ monthly meetings, many of them with prayers explicitly invoking Christian doctrines.
      After Susan Galloway and Linda Stephens objected, the board allowed a Jewish layman, a Bahai leader, and a Wiccan priestess to open meetings. But a Christian minister opened another of the sessions with a prayer that criticized “the “ignorant minority” who had objected to the sectarian invocations.
      Expect more of these unedifying — and, one might say, unchristian — episodes thanks to the Supreme Court’s decision last week [May 5] allowing sectarian, legislative prayers with only the slightest hint of judicial review to help instill religious tolerance. In a 5-4 decision, Town of Greece v. Galloway, the court found nothing by way of an Establishment Clause violation in Greece’s practice of turning over the official dais to Christian ministers to pray in sectarian terms before citizens gathered for the secular business of municipal government.
       In the main opinion, Justice Anthony M. Kennedy invoked historical tradition dating from the First Congress. The practice of legislative prayer, with what Kennedy called Christian “vocabulary,” was “accepted by the Framers” and “has withstood the critical scrutiny of time and political change.”
      For the dissenters, Justice Elena Kagan invoked a different tradition, a promise in the Constitution to treat believers of every faith alike. As citizens performing duties or seeking benefits of citizenship, Kagan wrote, every American “does so not as an adherent to one or other another religion, but simply as an American.”
      The dissenters — significantly, the three Jewish justices and the liberal Catholic Sonia Sotomayor — conceded the constitutionality of legislative prayer, but wanted only to require “religious neutrality,” in Kagan’s phrasing: accommodation for prayer givers of all faiths and all in nonsectarian terms only.
      In his opinion, Kennedy was more worried about the rights of the government-invited prayer-givers than those of the public audiences. Rules about the content of legislative prayer, he said, would amount to “a form of government entanglement with religion that is far more troublesome than the current approach.”
      Years earlier, Kennedy had had no problem with a different kind of government entanglement in a First Amendment context. He joined the 5-4 majority in Rust v. Sullivan (1991) in upholding a law telling federally funded family planning clinics that they could not counsel clients about whether to seek an abortion.
      In the prayer case, Kennedy cautioned that there might be a constitutional problem with “a pattern” of invocations that either “denigrate” other religions, “threaten damnation,” or “preach conversion.” By finding no such pattern in Greece, however, Kennedy signaled clearly that lower courts should not look hard for any violations.
      Among the other four justices in the majority — significantly, all of them Catholic — Justice Clarence Thomas went along, but only after reiterating his view that the prohibition against government establishment of religion does not apply to state and local governments at all. Thomas was not even sure about its meaning for the federal government. The First Amendment, he said, “probably” prohibits a national establishment of religion.
      Among the many commentators pro and con on the issue, George Will reflected the view of many supporters of government-sponsored prayer by criticizing those who object for having “a thin skin.” On the other side, such columnists as E.J. Dionne Jr. and Ruth Marcus criticized the court’s majority for a lack of “empathy” toward the nation’s non-Christians.
      In her dissent, Kagan dropped a footnote invoking George Washington, Thomas Jefferson, and James Madison in warning that the government’s aligning itself with any particular sect or creed was inevitably divisive. As Kagan noted, the nation was overwhelmingly Christian at the time and far more religiously diverse today. The sight of a Hindu priest delivering a prayer in the Senate chamber produced the kind of acrimony that Washington warned against two centuries earlier. With an Establishment Clause pass from the Supreme Court, one can expect only more such acrimony in the future.


  1. Mr. Jost,
    Just a couple of things of note: your concerns about "acrimony" are, I believe, not likely in reality to be much of a concern. With the millions of Christians in the United States, but one group objected; this "heckler's veto" thankfully didn't stop the Hindu priest (unlike what groups have recently done at Rutgers and Brandeis). There was not, apparently, a wave of boisterous Christian objection, perhaps because that would be antithetical to the goal of peace that underlines Christian belief. Second, your comparison of Judge Kennedy's position in the Rust cases ignores a critical, if subtle, distinction: the government can't stop you from voicing an opinion about the desirability of an abortion but it doesn't have to pay for it either; prohibiting use of tax payer dollars in this context is not an impermissible abridgment of free speech.

  2. Recall that James Madison adamantly opposed the idea of a Congressional Chaplain. So the First Congress citation... is bad. The First Congress was wrong.

    1. Sorry, but James Madison (though he was a great statesman, and though his writings hold a lot of good insight into the meaning of the Constitution) only *wrote* the First Amendment - he didn't introduce it to the states for ratification (in the constitutional sense, though he certainly helped to introduce it in the colloquial sense). The First Congress did.

      Madison's interpretation of the Bill of Rights is very valuable, but where it conflicts with the First Congress, it must yield. Madison, in his own person, had no constitutional power to draft or propose amendments to the Constitution. He could only suggest that the First Congress should do so. Therefore, if the First Congress had a chaplain, then they clearly did not make having a chaplain unconstitutional. Madison had no power to dictate otherwise, despite his personal feelings on the matter.