A local paper asked me to write an Op-Ed on the Town of Greece prayer case, but -- with grading and other end-of-semester business in the way -- I got it done too late for them to publish. So here it is:
We live in fractious times. Politics, law, religion, have all turned into bitter battlegrounds. Combine the three and all hell, so to speak, breaks loose.
Reaction to the Supreme Court’s recent decision in Town of Greece v. Galloway is a good example. In that case, the Court again upheld the constitutionality of official prayers at the start of legislative sessions, explicitly including (as had not been clear before) meetings of town councils. And it rejected the argument that the specific pattern of prayer in Greece, New York, was too narrow and sectarian. Partisans on one side cheered the Court for upholding tradition and national reverence. And partisans on the other side accused it of tolerating Christian hegemony. (Full disclosure: I clerked for Justice William Brennan, Jr. in 1983, when he dissented from the original decision in Marsh v. Chambers allowing official invocations in state legislatures.)
My take on the problem is different. The Court was wrong to allow official legislative prayer in the first place. But having allowed the practice, it was right not to try to force such prayer into a narrow, inoffensive, channel. Let me explain.
The American constitutional tradition of separation of church and state is based on the conviction, in the words of Justice Hugo Black, that “a union of government and religion tends to destroy government and degrade religion.” Unfortunately, separationists have had a hard time recently hammering home the second half of that equation: allowing the government to appropriate and exploit religious symbols and practices is not “pro-religious.” To the contrary, it trivializes and cheapens the power of faith and distorts the true focus of religious life.
The Court’s opinion in Town of Greece unintentionally proves this point. According to the Court, the justifiable purposes of official legislative prayer include lending “gravity to public business,” encouraging lawmakers to “transcend petty differences,” and expressing a “common aspiration to a just and peaceful society.” Elsewhere, Justice Kennedy mentions acknowledging “the place religion holds in the lives of many private citizens.” Conspicuously missing in this list is the most obvious purpose of genuine prayer – to pray. The Court, at some level, recognizes that a city hall is not a church or synagogue or mosque. We can all pray for our government, but it is not the government’s job to pray for itself. But if the purpose of official prayer is not (ahem) to pray, then all the lesser purposes the Court allows, including lending “gravity to public business,” are merely play-acting – using and abusing religion for secular ends.
Nevertheless, if we are to have legislative prayer, then the Court was right to reject the invitation to censor individual practices of prayer for inclusiveness and ecumenical purity. One reason is practical. The line between “sectarian” and “non-sectarian” practices of prayer is difficult and vague. Had the Court tried to draw that line, beyond its warning that prayers should not “denigrate” or “proselytize,” that would only have invited hard identity religious partisans (more interested in power than in prayer) to press as close to the line as possible and separationists to challenge them at every turn. In this context, at least, reasonable compromises might actually be more likely if the shadow of the law recedes a bit.
But the more important reason is this: As Justice Brennan put it in his dissent in Marsh v. Chambers more than thirty years ago, “prayer is serious business – serious theological business.” To forcefully strip legislative prayer of its rootedness in particular faith traditions or to demand a compulsive even-handedness in rotations of chaplains would only further trivialize and politicize the act.
That’s not to say that public prayers should be “sectarian.” Quite the contrary. Religious (and even sympathetic non-religious) folk can find ways to pray together. And the wisest religious traditions demand sensitivity to other faiths (and persons of no faith) in the public arena. But if the Constitution is to allow official public prayer (which, as I’ve said, it shouldn’t), then it has no business demanding such wisdom as the price of admission to the halls of government.
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