Supreme Court's prayer ruling

You've probably heard by now that the U.S. Supreme Court, by a bare majority, upheld the practice of a town council in New York to open meetings with prayers.

And, no doubt, you've heard both the celebrations of those who consider this a great victory, while others wonder when the burkhas will be passed out to the women.

Ms. Jennifer Rubin, who writes a column in the Washington Post from the point of view of the establishment GOP, reacts in turn to what SCOTUSblog had to say (back to that in a moment). Her conclusion:

If they [i.e., "social conservatives"] care to look more closely, they may be dismayed — even horrified — by the court’s decision to micromanage the content of prayer in assessing constitutionality.

Here's the arduous "test" such prayers must pass, as explained by Lyle Denniston at the respected SCOTUSblog:

1. Such prayers are not confined to meetings of Congress or state legislatures, but may also be recited in the more intimate and familiar setting of local government meetings.

2. The prayer portion of the meeting must be conducted only during a ceremonial part of the government body’s session, not mixed in with action on official policy.

3. The body may invite anyone in the community to give a prayer and (if it has the money) could have a paid chaplain.  The officials on the body may also join in the prayer by bowing their heads or showing other signs of religious devotion, such as crossing themselves.

4. The body may not dictate what is in the prayers and what may not be in the prayers.  A prayer may invoke the deity or deities of a given faith, and need not embrace the beliefs of multiple or all faiths.

5. In allowing “sectarian” prayers, the body’s members may not “proselytize” — that is, promote one faith as the true faith — and may not require persons of different faith preferences, or of no faith, to take part, and may not criticize them if they do not take part.

6. The “sectarian” prayers may not disparage or discriminate against a specific faith, but officials need not go to extra lengths to make sure that all faiths do get represented in the prayer sessions — even if that means one faith winds up as the dominant message.

7. Such prayers are permissible when most, if not all, of the audience is made up of adults — thus raising the question whether the same outcome would apply if the audience were a group of children or youths, such as the Boy or Girl Scouts, appearing before a government agency or a government-sponsored group.  (The Court did not abandon its view that, at public school graduations or at events sponsored by public schools, prayers are not allowed because they may tend to coerce young people in a religious way.)

8. A court, in hearing a challenge to a prayer practice, is confined to examining “a pattern of prayers,” and does not have the authority to second-guess the content of individual prayer utterances.  In judging such a pattern, the proper test is not whether it tends to put forth predominantly the beliefs of one faith, but whether it has the effect of coercing individuals who do not share that faith.

Now, what do I think about all this?

I think there's a lot of misunderstanding of this subject.

First, contrary to what you hear constantly, our Constitution says nothing about "separation of church and state." Those words never appear in the Constitution; nor does the Constitution call for any such thing.

What the First Amendment actually says is that "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof." Over the years, "Congress" has been understood to apply to state and local government as well (because of the 14th Amendment).

Establishing religion doesn't mean any official sanction of religion; that would mean you can't have "In God we trust" on our money, and it would raise the question of what actions by government count as "establishing": did President Roosevelt, when he led a prayer over the radio during World War II, "establish" religion?

The phrase "establishment of religion," historically, has meant giving official recognition and privilege to one, particular religious body. Example: the Church of England in the UK. Over the years, many have tried to argue for a much more expansive idea of "establishment," meaning in effect any seeming endorsement of religiosity whatsoever. The courts seem to draw back from going all the way, but then end up with mishmash compromises like the eight-part test above.

Obviously I'm not an attorney, but: I'd have said there's no constitutional violation here. Whether it's a good or a bad idea to have such prayers, that doesn't mean it violates the Constitution. And folks who say it does, let them point to the exact language it violates.

The trouble with the First Amendment is that folks tend emphasize one clause, forgetting about the other. If any official sanction of religiosity counts as "establishment," what happens to "free exercise"?

For example, in the U.S. Senate, when members hold the floor for a filibuster, they will read things, like the Constitution. Recall the film, "Mr. Smith Goes to Washington": Senator Smith reads from the Bible. In real life, would that violate the First Amendment? The idea that we would interpret our Constitution as creating a speech police for anyone holding public office seems mighty strange to me.

Now, the counter argument is that these things make some people uncomfortable. No doubt. But I ask again: where in the Constitution does it say speech or actions by public officials cannot make anyone "uncomfortable"? And if you say, well, it's only "religious" speech or actions, then I ask: does that include citations of Scripture or religious sources? Does it include religious gestures or symbols? Every year the President sets up a Menorah at the White House for Hannukah. Does this mean that, for the eight days of that feast, Judaism is "established" in the United States?

"Well, no one has complained about that yet." What happens when someone does?

Now let me throw you for a loop. I'm not necessarily in favor of these sorts of prayers. As others have pointed out, there tends to be pressure to "blandify" them. 

Similarly, there will be occasions when someone will bring together clergy from all different religions, and then everyone ends up offering anodyne observations and good wishes -- and I wonder, who really is satisfied by that "prayer"? There has to be some commonality. Obviously Orthodox, Protestant and Catholic Christians can find that both in Scripture texts, and even common prayers like the Our Father. So can Jews and Christians -- we can pray the psalms. After that, commonality breaks down -- especially when you have religions that don't even agree on the number of divinities.

Worse, there is a real tendency to bring in the preacher more for show than because prayer is really a priority. That's how I feel about prayers at political conventions, and even moreso, about those "God and country" rallies that used to be very popular, but thankfully have waned. Politics is a noble profession, but if I'm ever invited to give an invocation at a political rally, I'm not sure they'll ever invite me back. 

That makes me think as well of the trend, a few years back, of setting up Ten Commandment monuments in front of public buildings. I'm for the Ten Commandments, but I was not for that. First, if the politicos want really to honor God's Law, instead of sticking a slab of granite out front, how about they, personally, start carrying a copy of the Ten Commandments with them? And demonstrate their devotion to the Word of God? Maybe just try focusing on one commandment at a time, any of them: "I am the Lord your God" or "Thou shalt not steal" or "Thou shalt not commit adultery." People would notice that, and there is no question of violating the Constitution.

But I keep coming back to what the Constitution actually says. And to something Justice Antonin Scalia has said many times: lots of bad ideas and bad policies don't violate the Constitution.