Supreme Court: Sectarian prayers before legislative sessions don’t violate the Constitution

posted at 12:41 pm on May 5, 2014 by Allahpundit

A 5-4 ruling, with Kennedy swinging towards conservatives this time to make a majority. (Among the public, it’s … not as close as that.) The Court held more than 30 years ago that prayers before a legislative meeting are simpatico with the First Amendment, finding that “the practice of opening legislative sessions with prayer has become part of the fabric of our society.” Today’s case explored a wrinkle in that ruling: What if the prayers are usually given by members of one faith? And what if, instead of vaguely mentioning “God’s blessings,” they invoke beliefs specific to that faith, e.g., a Christian minister praying for Jesus Christ’s guidance? Does that go too far towards an Establishment Clause violation?

Held: Nope. Kennedy, who wrote the opinion, argued that forcing the legislature to closely supervise each minister who prays before them to make sure they’re not overly specific would itself be a problem for the Establishment Clause. Better to let the minister pray in a sectarian manner, even if that means references to Jesus or Allah and his prophet, Mohammed. Here’s the money quote via Gabe Malor:

But won’t sectarian prayer raise the risk of religious indoctrination? It’s one thing to pray nonspecifically to “God,” but if you’re praying to Jesus then you’re obviously endorsing Christianity. Kennedy’s answer to that is interesting: The reason it’s okay to have prayers before a legislative session is because those prayers aren’t really designed to spread the faith, they’re more just to “solemnize” the occasion. That reminds me of the idea of “ceremonial deism,” a term that’s been used in dissents before to mock the Court’s willingness to tolerate minor government endorsements of religion so long as no one takes the endorsement very seriously. Technically “In God We Trust” may violate the idea that the feds shouldn’t be taking sides between believers and nonbelievers, but it’s so vague and so rote that it’s basically lost all religious meaning, which makes it okay. Kennedy’s offering a twist on that. Quote:

cd1cd2

As long as the chaplain’s asking his particular God for general blessings, he’s okay. Once he starts in with “Jesus, turn the hearts of the nonbelievers,” though — or once the legislature itself starts praying during the session — he’s/it’s on shaky ground, since that would introduce an element of actual coercion. (Incidentally, on the question of coercion, the Court’s conservatives were split today between Kennedy, Roberts, and Alito on the one hand and Thomas and Scalia on the other. The first group made clear that even small amounts of coercion in the opening blessing could violate the Establishment Clause. The second group argued that the Clause is chiefly a federalism prohibition and shouldn’t reach the “subtle pressure” of legislative prayer, esp.) Kennedy’s essentially jettisoning the deism part of “ceremonial deism” but keeping the ceremonial part.

Wait, though. None of this answers the other question up top — namely, what happens if every legislative session is being opened with prayers from the same faith? If only Christians give the blessings, wouldn’t that be an Establishment Clause violation? It depends, says Kennedy, on whether that’s by design or just a byproduct of town/city demographics:

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If your town is 99 percent Christian, you don’t have to bus in some imams to give the blessing now and then. As long as no one’s formally barred from delivering the prayer because of their faith, you’re within the law — for now, at least. All of these hot-button Supreme Court rulings are one conservative vacancy away from being overturned.


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Meow, your take?

Bmore on May 5, 2014 at 8:22 PM

Why should allowing prayers to “Allah” be a problem ? listens2glenn on May 5, 2014 at 7:35 PM

Because at best, Allah is non-existent. At worst it’s Satan.

Akzed on May 5, 2014 at 8:35 PM

Or how about if your child goes to school every day and hears a prayer that denies Jesus is the son of G_d. How would you feel about that?

Honestly, this is one of most biased decisions I have seen from the Court since it talked about pnumbras

georgealbert on May 5, 2014 at 5:36 PM

Speaking of straw men- this decision is NOT about prayer in school. I’m not going back to read the decision again right now, but I think that distinction was clearly drawn in the decision. If not, it may have been in some of the commentary today.

cs89 on May 5, 2014 at 8:51 PM

It shouldn’t be a problem. But let a Muslim say a prayer in a state house.
I gurantee you It will make the news.

weedisgood on May 5, 2014 at 8:18 PM

News? Yep.

http://www.washingtonpost.com/wp-dyn/content/article/2010/03/10/AR2010031003909.html

I’d invite you to point out anyone lawsuits filed in this (or other situations where Muslims, Hindus, etc. have offered prayers in legislative settings) case.

We had a Hindu prayer in the U.S. Senate a few years back. A bunch of people didn’t like it, but you’d be hard-pressed to find it on the SCOTUS docket….

cs89 on May 5, 2014 at 8:55 PM

Why should allowing prayers to “Allah” be a problem ? listens2glenn on May 5, 2014 at 7:35 PM

Because at best, Allah is non-existent. At worst it’s Satan.

Akzed on May 5, 2014 at 8:35 PM

But what does that have to do with “allowing” prayers? You don’t have to join in.

kcewa on May 5, 2014 at 9:21 PM

Good.

Count to 10 on May 5, 2014 at 9:33 PM

It’s amazing that the phrase “…or prohibiting the free exercise thereof…” can mean something so different than what that phrase actually says. It’s equally amazing that the phrase “Congress shall make no law respecting an establishment of religion…” has been translated to beyond the scope of legislative processes and outside of the US Congress.

anuts on May 5, 2014 at 10:37 PM

So now, when we get to the point where a government body opens its session 98 out of every 100 times with a prayer that says Allah is G_d and Muhammed is his only messenger, you will need to accept that as part of our tradition

georgealbert on May 5, 2014 at 4:19 PM

If I’m in a community that is 98% Muslim, then that’s what I would expect.

malclave on May 5, 2014 at 10:47 PM

Why should allowing prayers to “Allah” be a problem ?

listens2glenn on May 5, 2014 at 7:35 PM

.
Because at best, Allah is non-existent. At worst it’s Satan.

Akzed on May 5, 2014 at 8:35 PM

.
So … what ? ! ? ! ? ! ? ! ? ! . . . . . That shouldn’t be a problem for Christian believers, unless they’re a bunch of fragile wimps.

Either we allow heathens to pray to their ‘pseudo-deities’, or we don’t allow prayer at all … period.

listens2glenn on May 5, 2014 at 11:02 PM

Or how about if your child goes to school every day and hears a prayer that denies Jesus is the son of G_d. How would you feel about that?

Honestly, this is one of most biased decisions I have seen from the Court since it talked about pnumbras

georgealbert on May 5, 2014 at 5:36 PM

Speaking of straw men- this decision is NOT about prayer in school. I’m not going back to read the decision again right now, but I think that distinction was clearly drawn in the decision. If not, it may have been in some of the commentary today.

cs89 on May 5, 2014 at 8:51 PM

I went back & looked for the “school” contrast: from the decision, P. 22:

This case can be distinguished from the conclusions and
holding of Lee v. Weisman, 505 U. S. 577. There the Court
found that, in the context of a graduation where school
authorities maintained close supervision over the conduct
of the students and the substance of the ceremony, a
religious invocation was coercive as to an objecting stu­
dent. Id., at 592–594; see also Santa Fe Independent
School Dist., 530 U. S., at 312. Four Justices dissented in
Lee, but the circumstances the Court confronted there are
not present in this case and do not control its outcome.

cs89 on May 6, 2014 at 12:27 AM

For you Christians, think about going to a government sanctioned hearing every day and then having the prayer basically calling believers in Jesus pagans and idolaters. Now if you are telling me that that would not bother you, I don’t believe you.

georgealbert on May 5, 2014 at 4:19 PM

See, now, I think that’s exactly what Kennedy was talking about. The prayer is allowed to be a blessing, but not allowed to proselytize or preach.

Even if I did hear such a thing, sure, it would bother me, but why should what bothers me in any way, shape, or form determine what’s constitutional and what isn’t?

Besides, if it bothers me, the solution is to find a minister I agree with more and ask that they be allowed to pray. After all, the solution to speech you disagree with is more speech, not less.

Cheshire_Kat on May 6, 2014 at 4:54 AM

cs89 on May 5, 2014 at 5:11 PM — no I did not miss that at all, you are doing the Obama thing and raising a straw man issue that no one is contending….

georgealbert on May 5, 2014 at 5:36 PM

I think you are the one raising a straw man when you say,

but if you think that it is not denigrating to someone that is not Christian to hear every day that the government praises Jesus as G_d, therefore if you don’t you are not part of the community…

This decision does not suggest that the government should praise Jesus as God! It says that to start government meetings, a prayer or blessing is allowed to be said which invokes the good graces of a deity over the proceedings. It contends that allowing such prayers does not constitute an establishment of religion.

As I said in my previous post, there are restrictions on what is allowed in these prayers, because of the government setting. And for heaven’s sake, what part of this decision did you read to understand that not praising Jesus as God meant that you weren’t part of the community?

Cheshire_Kat on May 6, 2014 at 4:57 AM

As I said in my previous post, there are restrictions on what is allowed in these prayers, because of the government setting. And for heaven’s sake, what part of this decision did you read to understand that not praising Jesus as God meant that you weren’t part of the community?

Cheshire_Kat on May 6, 2014 at 4:57 AM

======================================================

Did you read the decisions? The majority says it is not OK to proselytize, but then it says it is OK if a government body has as its opening prayer 98 out of 100 times that Jesus is G_d…. This is like Jay Carney saying the email about Benghazi was not about Benghazi…it is idiotic in its illogical structure. The decision was not made on the law, it was made on emotions and feelings. That is why it is a bad decision. Do you think for one minute, that if the 98 out of 100 times the prayer was done it praised Allah as the only G_d and Muhammed as his only messenger that these justices would have come to the same majority conclusion?? Basically the decision is that because Christianity is the core religion that is part our history, then it is OK and traditional to have Christian prayers and the 98% solution. But then the Justices are not honest enough to say that and that is another reason why it is a bad decision. At least if they would have admitted that Christianity holds a special place as part of the US tradition it would have been logical and consistent with the result of the decision.

Here is the decision in honest terms: This is a Christian country with Christian traditions and one of those is Christian prayer before during or after government meetings. So therefore, because that is what the drafters of the Constitution had expectations of, it is OK now to continue it.

Instead they decided to try to obfuscate that truth under some ridiculous BS about invoking some “universal themes” which is contrary to their previous statement that government officials should not be in the business of editing speech for prayer invocations…which of they are doing by saying it is fine to say things like

“We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . :”

Gee, that is really a designation of a state religion, especially when you hear it only 98 out of every 100 prayers. Yes, and the letter about Benghazi was not about Benghazi.

georgealbert on May 6, 2014 at 6:11 AM

Did you read the decisions?
georgealbert on May 6, 2014 at 6:11 AM

Did you?

For example, see your strawman about “school” above & my response from the decision itself.

This is not saying the “government” can praise God, or that Government officials (in their official capacity) can dictate correct or incorrect faith claims.

This decision acknowledges the historical practice of allowing individuals to offer religious statements or prayers according their own religious convictions, in this case in an invocation prior to beginning a meeting (similar to the practices of the actual Founders who wrote the Constitution itself…)

What is illogical is the pretzel libs/progressives try to twist us all into by essentially asserting “yes, it’s true that many of the Founders allowed and encouraged prayer in public settings. However, because they included a Religious Freedom right in the Bill of Rights to the Constitution, and because Jefferson wrote a letter to the Danbury Baptists citing a ‘Wall of Separation,’ no one is allowed to refer to God in any public/governmental setting.”

Um, no.

cs89 on May 6, 2014 at 6:56 AM

“and because Jefferson wrote a letter to the Danbury Baptists citing a ‘Wall of Separation,’ no one is allowed to refer to God in any public/governmental setting.”

Which is interesting because Jefferson had nothing to do with drafting or implementing the Bill of Rights.

tommyboy on May 6, 2014 at 7:16 AM

“and because Jefferson wrote a letter to the Danbury Baptists citing a ‘Wall of Separation,’ no one is allowed to refer to God in any public/governmental setting.”

 
Which is interesting because Jefferson had nothing to do with drafting or implementing the Bill of Rights.
 
tommyboy on May 6, 2014 at 7:16 AM

 
Also interesting is how those very same people believe similar letters shouldn’t have any influence on 2nd Amendment interpretations.

rogerb on May 6, 2014 at 8:27 AM

As long as no one’s formally barred from delivering the prayer because of their faith, you’re within the law — for now, at least. All of these hot-button Supreme Court rulings are one conservative vacancy away from being overturned.

Which is why it’s so desperately important that we regain control of the Senate this year, and add the White House in 2016. One vote changed, would have lost the First Amendment, the Second Amendment, etc. And don’t think the Progressives don’t know this!

ReggieA on May 6, 2014 at 4:42 PM

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