SCOTUS got this one right

The Supreme Court ruled Monday in a tight decision (5-4) that the town of Greece, NY did not violate the Establishment Clause in choosing to open their legislative sessions with prayer in spite of the fact that the prayers were overwhelmingly offered by Christian ministers some of whom even prayed in Jesus’ name.  This case was closely watched in Baptist circles last fall when the arguments were made.  I had a chance then to interact with the arguments on both sides of the case.  While I appreciate the spirit of the arguments made by groups like the Baptist Joint Committee and respect their sincere desire to both guard the religious liberty of all Americans as well as the practice of prayer itself, I was not convinced and was glad to see SCOTUS rule as they did.  That said, the tight nature of the decision reflects that this is an issue on which there is still a great deal of division in the country and those on the “winning side” need to move forward with an attitude of humility so as to avoid needless offense all the while standing firm against those who seem set on finding an offense every chance they get.

The majority opinion, written by Justice Kennedy, is helpful in explaining the line between needlessly sectarian prayers and prayers which simply reflect the makeup of a community.  He argued that having the government step in to determine whether or not prayers were nonsectarian enough to meet some ambiguous standard would have itself represented a problem for the Establishment Clause.  One observation was particularly helpful in illuminating this point: “The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech.  Once it invites prayer into the public sphere [which it did in the earliest days of the nation and did again in the Marsh case], government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”  In other words, because public prayer has already been declared permissible, people should be able to pray publicly in the name of their respective deity without interference from outside forces.

Consenting opinions added notes of caution and pointed out that prayers which became tools for proselytization would cross the line set in place by the Establishment Clause.  The dissenting opinion suggested that the town had not done enough to ensure the prayers were of a sufficiently nonsectarian nature.  Yet, given that the town is overwhelmingly Christian in religious affiliation, adding more diversity to the opening prayers would have required the Town Council to reach outside the community which would have put an undo burden on the Council.  As for those who argued that the circumstances reflected in Marsh were significantly different from those in the present case, the majority opinion took the opposite stance with which I agree.

In his opinion regarding the nature of the prayers being offered themselves, Justice Kennedy took an essentially ceremonial view of prayer in such circumstances.  The prayers are merely intended to seek the blessings of the particular prayer giver’s deity and not to actively call those in attendance to consider taking up the prayer giver’s religious worldview.  Now, groups like the BJC have argued that this represents a cheapening of the act of praying that believers should oppose, but with respect, I disagree.  Here’s why: Were I tasked with offering an invocation before a public gathering (as I have in fact had opportunity to do), my intent would be to sincerely seek the presence and wisdom of the Christian God to have a bearing on the ensuing events.  Perhaps that intent brushes up close to the lines of the Establishment Clause, but the government has no way of determining which is which and shouldn’t.  And, I could easily keep my prayer tightly focused on the task at hand and not drift into proselytization.  Furthermore, were an Imam or a Wiccan Priest the one offering prayer, while I strongly disagree with the worldview from which they are praying and do not in fact believe they are praying to an actual deity with the power to answer, I am confident enough in my own worldview that I would feel neither impressed upon to join in their worldview nor threatened in any way.  Rather, it seems to me that such displays of pluralism reflect a strength of this country in its ability to tolerate (classical tolerance, that is) people of many different religious worldviews all applying their worldview publicly.

The alternatives presented by the opposition would lead to two different outcomes, both of which are undesirable.  First, the government could be tasked with coming up with some guidelines by which prayers could be counted sufficiently nonsectarian.  This, however, is a task well beyond the government’s abilities or license.  What would happen then is that the government would essentially be establishing a nonsectarian religion which, as Justice Kennedy argued, would itself represent a violation of the Establishment Clause.  Second, all prayers before public gatherings would have to be outlawed.  This is equally problematic, though, because our nation was founded from out of the place of a particular religious worldview and there are appeals to God (from out of a Judeo-Christian worldview, by the way) in our founding documents.  Put another way, our founding documents assume the existence of a Creator and a Creator of a particular character that only makes sense within the context of a Judeo-Christian worldview.  Scrubbing all vestiges of religion from public gatherings would seem to be a historically tone-deaf and burdensomely unnecessary attempt to avoid offending individuals who seem to have a need to find offense under every rock.

The third option here, which was wisely advocated by the majority, is to not only let public gatherings begin with prayer, but to begin with prayers offered in a sectarian manner consistent with the worldview of the prayer giver.  The Supreme Court, while divided, handed down this ruling in a manner consistent with the vision of religious liberty intended by our Founding Fathers.

Jonathan Waits

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Jonathan is the pastor of Central Baptist Church in Church Road, VA. He's the husband of one beautiful woman and the father of three active boys. A graduate of Denver Seminary, he loves connecting the dots between the Christian worldview and culture.

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  • http://brencase.com/ Phillip B. Allen

    This is a nice try, but just not on the mark! Justice Kennedy expressed the attitudes of people who have forgotten what democracy is when he suggested that persons could just leave the room if they do not like the prayers offered. Too many Baptists have forgotten that they once were a persecuted minority. Also, all Christians should be offended by the idea that praying “in Jesus’ name” is simply ceremonial. Jesus had some strong words to say about Pharisees praying in public with their “look at me” attitude.

    • Jonathan Waits

      Thanks for the comments, Phillip. No, I don’t agree with all of Justice Kennedy’s reasoning, but I think the final decision was the right one. A couple of thoughts for you: First, you perhaps forget that ours is a representative democracy, a republic, not a true democracy and so in that sense Kennedy didn’t forget anything. In a system such as ours a better solution than leaving the room (and I’m sorry for not being able to wrap my mind around being so offended by a particular worldview expression that leaving the room would even be an option) is to use the power of the ballot to change the legislative body in order to send the message that opening sessions with prayer doesn’t reflect the will of the governed. But, as I mentioned in my article, I think Kennedy charted a path well between the two unacceptable (to me, at least) options of a totally secular public square (which was never the vision of the founders) and a kind of civil religion (which would be deeply problematic). Also, I would argue that there is a difference between the kind of pharisaical public prayers opposed by Jesus and praying in public for purer reasons. It’s an issue of motivation, not necessarily action. Thanks again for your thoughts.

  • JP Harris

    “When church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued.” Isaac Backus

    Ceremonial prayer is an exercise of religion, Civil religion. Civil religion is dangerous to the religious liberty of all, including our own. Remember Rome?

    • Jonathan Waits

      JP, I really appreciate your thoughts. That’s a great and true quote from Backus. I agree that ceremonial prayer is problematic. Ceremonial religion in Rome was terrible for the Christians who were threatened by it. But, what SCOTUS has done here is to announce that no religion (or no religion for that matter) is being favored over any other. This seems to me to be the opposite of establishing a ceremonial religion. DIsallowing prayer entirely would have been deeply troubling as I pointed out in my blog. Given that prayer was going to happen, allowing prayer givers to pray from the place of their worldview rather than insisting that they sanitize their prayers in accordance with whatever form of religion-less religion the government deems appropriate avoids the establishment of the very kind of civil religion you and I both oppose. Thanks for your engagement!

  • RalphCooper

    There is no such thing as a Christian public prayer!!! Jesus, the Christ, said to pray in a closet, not in public. Bodies where people are mandated to be present to exercise their other civil rights should not require them to listen to a prayer at all. It is offensive to do so, and totally unnecessary. If the town council wants to pray, let them pray in another place and then join the public in the council meeting room. Then no one in the public will be forced to listen to a prayer that offends their religious sensitivities. The Supreme Court is doing to the First Amendment what is has done to the Fourth — putting enough caveats and exceptions to the basic right to make it like bad swiss cheese — more hole than cheese.

    • Jonathan Waits

      Hey Ralph, thanks for the comment. I think it might be a bit of an over generalization to simply declare that there’s no such thing as a Christian public prayer. What about church gatherings that take place in a public place or church gatherings more generally? Those are open to the public. Also, there seems to be here this notion that being in a place where you have to listen to a prayer from a worldview with which you do not agree is so deeply offensive that it should not be tolerated. Shouldn’t we be rather encouraging a robust tolerance where all these different worldviews can be in the same room without anyone afraid of each other? Christians (or anyone else for that matter) being able to pray in public in the name of our God seems to be a step in this direction. I don’t disagree that the town council praying in private would be a solution, but the point here is to avoid creating a wholly secular public square. Secularism is a worldview in and of itself and if the government shows favoritism for this worldview it is doing so at the expense of others including Christian theism. Allowing all these worldviews to interact honestly seems to be a way to avoid the very favoritism the First Amendment seems to want to avoid. Folks are reacting as if the government as acted in favor of Christianity in this case. But, while the case was about Christianity, it showed no favoritism. Any religious believer can pray equally and without fear of reprisal. That seems a fair approach to me. Thanks again for your thoughts.

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