Prayer and the Constitution

Prayer in open government meetings: Civil right or unconstitutional marriage of church and state?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Sixteen simple words, from the First Amendment's Establishment Clause, that have proved not so simple.

Religion is so personal and individual; spiritual life, paramount. Coming soon from the U.S. Supreme Court is a hoped-for clarification on more than a half-century of murky federal decisions on just where that line between establishment and free exercise should be drawn.

In a move surprising to some, President Obama in August officially argued in favor of Christian prayer at town council meetings (and arguably by extension, any legislative body). The administration filed an amicus brief ("friend of the court" - filed by non-parties nonetheless affected by the outcome) which sides with Republicans and 18 states, including Idaho, in the pending Establishment Clause case.

The Supremes, now with a conservative majority, have been looking for the right case to clarify the issue. Some legal experts believe what may result from the current Court would stretch far beyond council meetings and alter the current rule. To the extent anyone understands it anyway.

Backing up, the town council of Greece in upstate New York has for years opened its meetings with a minister-led prayer. At first they were all Christian (and the vast majority remained so), mentioning religious specifics such as Jesus' resurrection and the Lord's Prayer. After a few - including those religious and atheist - objected, a handful of others (e.g., Jewish, Baha'i, and Wiccan) were allowed a turn at leading the prayer. These exceptions proved minimal. Non-participants were openly called "the ignorant minority." A lawsuit followed.

Does such activity violate the Establishment Clause? First, note the absolute prohibition - "no law" (applies to the states via the Fourteenth Amendment's due process clause.) Next note the elements, the questions elicited by each word analyzed in court cases: Does a government-offered prayer constitute "establishment" or is simply not forcing people to join or penalizing their reticence OK? How about "prohibiting" - does disallowing prayer at council or state legislative meetings constitute prohibition of legislators' free exercise, or is their freedom to do it in non-official settings enough? What are the limits of "free exercise" - where does one's exercise in public cross into another's territory of free choice? Is that different when the "one" is someone with political power and influence?

It's a precarious balance, with much overlapping territory. One person's perceived exercise is another person's perceived establishment. To those in the majority, a "simple blessing" is an aid to good governing. To objectors, the "choice" of a spiritual minority to remain silent at a public meeting while one's elected officials open proceedings with a specific religious belief still feels oppressive because it shows a preference by those in power - any preference. A tyranny of majority is what led our forefathers to flee and write this clause.

To meet this formidable challenge, the Supreme Court developed tests, but thus far no bright line; rather, a case-by-case, fact-based analysis which is difficult to pin down, and sometimes may seem at odds with itself. Over the decades justices have disagreed, some limiting "establishment" to the level of coercion only, while others considered any overt religious expression involving government officials and/or in government settings a violation.

The most commonly applied tests have been from the Lemon (1971) and Lynch (1984) cases. Over time the two have somewhat blended together in one long analysis.

Under the Lemon test the challenged government practice must:

(1) Have a primary secular (not religious) purpose (to an atheist or Buddhist, for example, any mention of "God" is religious);

(2) Have a primary secular effect; and

(3) Avoid "excessive entanglement" with religion.

Decisions applying the Lemon test have varied. Mandatory morning prayer in school, even when told nonparticipants could just bow their heads or be silent, was held a violation of the Establishment Clause. The same held true for a graduation ceremony as they were both "official" school settings with compulsory attendance. However, prayer at optional before- and after-school clubs or activities were held constitutional.

On the other hand, Congress and 49 state legislatures open sessions with prayer. That practice survived a 1983 federal court challenge - perhaps in part because public attendance at legislative sessions is generally optional. Others question this, because like town council meeting prayers it appears to be "endorsement."

Enter the Lynch case, which asked whether a challenged government action amounts to an "endorsement" of religion, making it invalid if it creates a perception that government either endorses one or disapproves of another, even if by implication. "Religion" in this context also includes the absence of religion, e.g., express disapproval of another religion, agnosticism, or atheism. Lynch emphasized that to be constitutional, participating or not participating, adhering or not adhering, must not be relevant in any way to a person's standing in the community. That's difficult to measure or describe, but people feel it clearly enough.

Confused? You should be. Lawyers expert in First Amendment analysis are. The Justices themselves are. This isn't easy stuff, but there are few things more important in a free society, so it's worth the pained progression as ours develops.

"In the words of Jefferson, the clause was intended to erect a wall of separation between church and state." - U.S. Supreme Court's Everson opinion, 1947

Whether the wall will be fortified or crumble is anybody's guess and as always, a matter of impassioned interpretation.

Sholeh Patrick, J.D., is a columnist for the Hagadone News Network. Contact her at sholeh@cdapress.com.