Column: Inside the First Amendment, by Charles C. Haynes

On Nov. 6, the U.S. Supreme Court will hear oral arguments in Town of Greece, N.Y. v. Galloway — a case that revisits the volatile issue of public prayers in government settings.

It’s been 30 years since the court upheld the constitutionality of legislative prayers in Marsh v. Chambers, citing the “unbroken history” of such prayers dating back to the founding of the nation.

According to the majority opinion in Marsh, legislatures, city councils and other government bodies may open their sessions with prayer, as long as the prayer isn’t used to “proselytize or advance any one, or to disparage any other, faith or belief.”

But rather than ending the fight over public prayers, the court’s murky guidance in Marsh has caused widespread confusion and conflict over who gets to pray and what they can say. What has been ruled legal by a lower court in one part of the country has been struck down as illegal in another.

Now a case involving the “prayer policy” of the Town Board in Greece, New York gives the justices an opportunity to clear up the mess created by Marsh.

At issue is the town’s practice of soliciting volunteers to be the “chaplain of the month,” free to determine the content of his or her prayers. In a decade of prayer giving at Town Board meetings, Christian clergy have offered the vast majority of the prayers — frequently “in the name of Christ.”

Does Greece’s prayer policy result in government endorsement of one religion over others, as critics charge? Or does the fact that prayer-givers are volunteers make the prayers constitutional, even if most of the prayers are from one faith? Do legislative prayers need to be “non-sectarian” to avoid proselytizing?

After the 2nd Circuit Court of Appeals ruled that the policy violates the Establishment clause of the First Amendment, the town appealed to the Supreme Court.

Short of overturning Marsh and ruling all legislative prayers unconstitutional (a very unlikely outcome), none of the answers the High Court can give to these questions will end the battle over legislative prayer.

That’s because the fight isn’t really about prayer; it’s about power and politics.

Most of the litigation challenging legislative prayer comes out of communities where members of the majority faith are determined to keep the practice. Although they must allow people of other religions to participate or risk losing the prayers, they often find creative ways to ensure that most of the prayers reflect their faith.

For proponents of legislative prayer, the issue seems to be less about the act of prayer and more about the symbolic act of re-affirming America’s dependence on the God of the Bible. For these Americans, ending legislative prayer would be tantamount to re-defining the nation.

If the issue were really about providing opportunities for authentic prayer, the solution would be creating a moment of silence where each person could pray (or not) as conscience dictates. The answer would not be government-sponsored prayers that either impose one God on everyone or offer “universal” supplications to no God in particular.

People of faith (any and all faiths) who care about authentic prayer should be first in line to get the government out of the prayer business. The integrity and autonomy of religion is undermined when government officials determine who gets to pray and who does not — or when prayers are “proselytizing” and when they are not.

No matter how the Supreme Court re-draws the guidelines for government-sponsored prayer, the problem remains that government entanglement with prayer always has been and always will be a threat to religious freedom and a recipe for conflict and division.

 

Charles C. Haynes is director of the Religious Freedom Center of the Newseum Institute, 555 Pennsylvania Ave., N.W., Washington, DC 20001. Email: chaynes@newseum.org.