I "believe" this has been litigated before, with the courts siding with sectarian prayers in these contexts, as long as the platform is open to all sects. (Not all at once, mind you, but that leaders from different faiths take turns offering the opening prayer.)
I'll see if I can find the case if I have time.
I agree with your thoughts on what makes something sectarian or not. I am undecided as to whether that's the best way to look at the broader picture of religion in civil life, though.
In Darryl Hart's book on J. Gresham Machen, Hart notes how it is usually the least-common denominator Christians who insist on civil religion. Those whose faith makes more specific demands of purity understand the problems and the difficulties civil religion causes for religious minorities.
I understand why people lament the "naked public square." I think this would be less of a problem if the government didn't so often own so much of the public space. Privately owned space that is treated as public space is the answer here.
As to Congress, why can't Congressmen meet for prayer before Congress meets? Then they could be as sectarian as they desired. They could even take communion before going into session if they wanted.
There are religious disadvantages to having religious figures involved in these matters. Do only the ones who play nice get invited? Does the chaplain's presence convey a stamp of approval on what goes on in the session? I know one LCMS pastor who said he didn't want to pray before city council meetings because it might make them look better than they were.
Rick, the arguments for strict separation are certainly weighty, and the ones you give have to be given consideration; I'm almost convinced by them too.
One of your proposal might sound good in theory:
"As to Congress, why can't Congressmen meet for prayer before Congress meets? Then they could be as sectarian as they desired. They could even take communion before going into session if they wanted."
But here we have the strange problem (it's strange that it's a problem, that is) of the vast majority of Americans belonging to one religion. Let's say all the at least nominally Christian Senator or reps got together privately. That would be at least 60-70% in DC. In state legislatures like Indiana, much higher.
Can you imagine how it would feel as a Jewish state rep to see colleague after colleague, some in your party, some not, some friends, some rivals, all trooping out of a closed meeting to which you were not invited, and doing at the beginning of every session?
In essence, such a private meeting of all Christians would function like caucuses that exclude Jews (and other religions, all of which added together make up less than 10% of the American population).
This is why a purely social club of influential people that has baptism as a condition of membership is liable to get sued, while a purely social club that has a Bar Mitzvah (or the Shahadah, or the humanist creed, or reliance on the Three Jewels) as a condition of membership is most unlikely to get sued.
Jim, if you are right, then I of course am wrong. But there are a number of different levels. Public school high school commencement? No prayers allowed at all. State college commencements? Prayers allowed but by equal access (what you said). Opening invocations at public occasions? I think "sectarian" prayers are not allowed.
This may also be an Indiana thing -- our constitution, while having a preamble that speaks of gratitude to God for the blessings of liberty, prohibits the spending of so much as a dime on "sectarian" education. So the sectarian/general divide in religion is built into our state constitution.
CPA,
I don't know how you have the time with your duties to post such eloquent and well-thought blog posts, but I have to say it's an honour to link to you. Thanks for kickstarting my brain today!
CPA,
I can see the problem in the situation you suggest. But I'm wondering if it has to be that way. Are they really likely to meet in such a large group as 60-70%? And if so, couldn't they make the meeting public so that any Jewish Congressman who wanted to see what was going on was at liberty to do so? The argument could be, "You're always welcome to join us, but we're having it separate from our session so that you are not forced to attend."
The bigger problem here is if meetings tended to become partisan. I would be against that, but some self policing is necessary for this to go well, anyway. Even if certain meetings were predominantly Republican, if they were left public, the Democrats could just take turns keeping watch.
Also remember. They are free to have such meetings as it stands. There just isn't the same incentive to do so. And the public prayers are, at least in theory, causing offense. The new practice is an attempt to address that.
This is a great post I will be saving.
CPA,
The U.S. Supreme Court case upholding prayer before a legislative session is Marsh v. Chambers, 463 U.S. 783 (1983).
Of course, state constitutions can establish higher standards than the U.S. Constitution, so the case is not necessarily determinative for Indiana.
I wasn't suggesting that "sectarian" prayers are therefore permissible everywhere, I just thought you'd be interested in a case on the specific issue of praying before a legislature.
As for me, I'm ambivalent about prayers in these situations. On the one hand, they can serve to "baptize" otherwise political outcomes (using "political" in the sense of a power play) and provide them a legitimacy they do not deserve.
On the other hand, they can also serve as a token reminder that a higher authority exists, and politics is not just "politics":
"Consider what you are doing, for you do not judge for man but for the LORD who is with you when you render judgment. "Now then let the fear of the LORD be upon you; be very careful what you do, for the LORD our God will have no part in unrighteousness, or partiality, or the taking of a bribe" (2 Chr 19.6-7).
Hello, folks; this is a really intriguing discussion you've got going on here.
I'm inclined to agree with Jim's last point above: there is something deeply sobering about beginning a session of Congress, or even a school day, with prayer. To set aside for the moment the question of constitutionality, which the Supreme Court has botched badly: in each case the prayer works psychologically not so much as a legitimizer of what we are doing, as a frame for it. That is, the rest of the school day or the legislative session is bracketed by that prayer (for it would be really helpful to end with a prayer, too) and therefore takes from it its context. It is a slight but real sign of submission to something incomparably higher than county commissioners and social studies teachers. It may even instill a sense of reverence, without which true education, and perhaps true statesmanship, cannot thrive.
All of that, AND God answers the heartfelt prayer, to boot.
My sense of civil life suggests that people get along with one another best when they establish, over time, a modus vivendi that may be peculiar to the place and the culture, not imposed from above. So your little town in Indiana ought to have a nativity scene on the Town Hall, and nobody ought to break out in a rash if the chaplain utters the J word in an opening prayer of the assembled town shysters. People ought to be grownups. (That means that the chaplain should use some discretion, too.) But in southern New York they might sing a Hanukkah hymn or two in the school concert, along with Hark, the Herald Angels Sing, and again nobody ought to break out in hives. If anyone does, he ought to be laughed at or given some ibuprofen and told to go lie down on a comfy sofa.
The interpretation of the First Amendment that says that government must be neutral as to deciding between religion and irreligion is, historically and linguistically, flat wrong -- and it is also illogical, since its premise is itself irreligious, relegating religion to the irrational corners of the individual mind. Maybe that's where Christians ought to start: we ought to insist that religion SHOULD be favored over irreligion, publicly, nor does the First Amendment forbid it.
Boy, that would make the atheists squeal.
There are so many levels of accumulated problems in Supreme Court jurisprudence on religion it's like pealing back an onion, there's always another level there.
1) The first level is the one I focused on, whether allowing prayer "in the name of Jesus" actually constitutes some kind of advantaging of Christianity. This I think is just absurd, for the reasons I stated.
2) The second level is that implicitly raised by Tony Esolen's point: does the Federal Constitution actually apply to the states? The doctrine of the 14th Amend. incorporating the Bill of Rights says yes.
In one sense, this issue is moot, since the Indiana Constitution actually has a verbatim First Amendment. BUT, if the federal 1st Amendment doesn't apply to the states, then the Supreme Court's interpretation would not govern the Indiana State Court's interpretation of those words. One would then have 50 or so (I assume pretty much every state constitution has something like a 1st amendment in it) interpretations of the 1st, which could differ in the way Tony Esolen suggested.
and finally there is the third level
3) Does the 1st Amendment establish neutrality between religion and unbelief, or only between various religions. I.e. does it allow belief in God to be "established" over rejection of God? Certainly the Indiana constitution by putting the blessings of Almighty God in the preamble allows this interpretation which I think before the 1940s was essentially unchallenged, even for the federal constitution. (Again if the Indiana's 1st amendment is read in light of Indiana's Civil War era constitution, the preamble would push you in a different direction than the federal constitution.)
On a minor point: Even if a state constitution repeats the exact words of something in the U.S. Constitution's Bill of Rights, the U.S. Supreme Court's interpretation of that right does not control the state supreme court.
State constitutional provisions are completely up to state-judicial interpretation.
That being said, as a practical matter, state constitutions can be applied only to guarantee more rights (in quantity or quality) than the national constitution. The 14th amendment effectively sets the "floor" for constitutional rights in states. So state constitutions can only guarantee more rights than guaranteed in the federal constitution, or can enforce the same rights more rigorously.
Point taken Jim. The rights here being understood not as the right to say whatever you want in public, but the right to be "free" from hearing the phrase "in the name of Jesus" -- which is a funny right.
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