With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.

I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent.  The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures.  But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:

[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian.  I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.

More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate.  Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business.  Some religious individuals or groups find it theologically problematic to engage in joint religious exercises predominantly influenced by faiths not their own.  Some might object even to the attempt to fashion a “nonsectarian” prayer.  Some would find it impossible to participate in any “prayer opportunity,” ante at  463 U. S. 794, marked by Trinitarian references.  Some would find a prayer not invoking the name of Christ to represent a flawed view of the relationship between human beings and God.  Some might find any petitionary prayer to be improper.  Some might find any prayer that lacked a petitionary element to be deficient.  Some might be troubled by what they consider shallow public prayer, or nonspontaneous prayer, or prayer without adequate spiritual preparation or concentration.   Some might, of course, have theological objections to any prayer sponsored by an organ of government.  Some might object on theological grounds to the level of political neutrality generally expected of government-sponsored invocational prayer. And some might object on theological grounds to the Court’s requirement, ante at  463 U. S. 794, that prayer, even though religious, not be proselytizing. If these problems arose in the context of a religious objection to some otherwise decidedly secular activity, then whatever remedy there is would have to be found in the Free Exercise Clause….  But, in this case, we are faced with potential religious objections to an activity at the very center of religious life, and it is simply beyond the competence of government, and inconsistent with our conceptions of liberty, for the State to take upon itself the role of ecclesiastical arbiter.

(Footnotes omitted.)

The important point here is that “prayer is serious business.”  Legislative prayer is constitutionally dubious, not because it “endorses” religion or “offends” non-believers, but because it is outside the proper domain of the government constituted by the American experiment.  Prayer is religion at its core, an activity that, in Madison’s words (in a different context), “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”

But what if the Court follows the majority opinion in Marsh, as it is likely to do?  (JSPAN, a group with which I work, has suggested in an amicus brief that the Court could, consistent with Marsh, still draw a bright line striking down official prayers in local legislative bodies, as opposed to Congress and state legislatures.  But that idea is also unlikely to fly.)  That, it seems to me, sets up some possibly intractable problems, to which there are no really good solutions.  (For an argument along similar lines about the constitutional “Christmas dilemma,” see my short talk here.)

At that point, it seems to me, the principle that prayer is serious business would require us to let (most of) the chips fall where they may.  For the reasons Justice Brennan stated, courts should not demand that legislative prayer be “nonsectarian.”  There is, with respect to prayer, no such thing.  Bland prayers, and prayers to an unnamed deity, are — if taken seriously as religious acts — just as “sectarian” as more apparently meaty prayers.  Certainly, judges should not try to monitor or censor individual prayers to strip them of religious particularity.  Nor should they even even try, as the Court of Appeals for the Second Circuit panel did, to decide whether a whole pattern of prayer over several years is somehow disproportionate by being, for example, too Christian.

I wouldn’t rule out all constitutional limits on the particulars of legislative prayer.  Since legislative prayers are, for better or worse, said in a civic context, the Constitution might at least demand that they be civil, in the sense of not disparaging other faiths.  More to the point, maybe, the Establishment Clause might bar processes for selecting chaplains, guest chaplains, or the like that by their terms manifestly exclude certain faiths, or for that matter even all faiths other than the preferred one.

To be sure, the distinction between exclusion and inclusion is shaky, and applying it in particular cases even more so.  But it might be the closest we can get to a fair rule while still treating prayer as serious business.

(For what it’s worth, the Court has some experience with a very similar distinction in other contexts, as when a plurality held in Island Trees School Dist. Bd. of Education v. Pico, a year before Marsh, that a school district has considerably more discretion to decide which books to include in a school library than which books to remove.  The analogy is very imperfect, but I suggest not entirely crazy.)

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