Galloway and an invocation’s slow death

Greg Randall Lee from Widener Law says the recent remarks of U.S. Senate Chaplain Admiral Barry Black during the shutdown crisis highlight the importance of prayer at public meetings.

barryblackThere are those who maintain the prayers of Chaplain Admiral Barry Black, opening Senate sessions during the government shutdown, ultimately played a role in resolving the budget crisis. Members of the Senate have said they heard in those invocations “the voice of stability and inspiration” and appreciated Chaplain Black’s counsel and leadership.

However, there are also those who insist that meetings of our government are no place for such prayer. Some of these are people who do not believe in a god or in a god who acts in people’s lives, but others are people who believe but perceive prayer in such settings as an effort to make it appear that God worships us or to wrap God’s seal of approval around our own will.

Township of Greece v. Galloway offers the United States Supreme Court the opportunity to weigh in on this debate. In Galloway, the Court has been invited to use the Establishment Clause to ban invocations at government meetings. Of course, using the Constitution to ban prayer from government meetings is no small challenge.

On the Senate’s website, for example, the chaplain’s page acknowledges that for more than two centuries, “all sessions of the Senate have been opened with prayer, strongly affirming the Senate’s faith in God as Sovereign Lord of our Nation.” The House of Representatives, meanwhile, recognizes a history similar in duration and describes its practice of opening sessions with prayer as a continuation of “the tradition established by the Continental Congresses.”

Similar religious manifestations have abounded in our country since its inception. The vast majority of presidents have chosen to take their oath of office with their hand resting on a Bible opened to a passage of Scripture publicly disseminated. In his Second Inaugural Address, President Abraham Lincoln quoted the Bible twice, made three references to prayer, and referred to God at least 12 times. In the Declaration of Independence, Thomas Jefferson attributed to “our Creator” the existence of both our rights and our authority to rid ourselves of a king.

Such manifestations are not restricted to the federal government. The Mayflower Compact, for example, manages four God’s and one “Christian faith” in less than 200 words. William Penn’s Preface to the Frame of Government for Pennsylvania spends its first two paragraphs in Genesis and the Epistles, and the Alabama Constitution begins by “invoking the favor and guidance of Almighty God.”

The judicial branch could simply disregard over 200 years of history and the continued practices of two co-equal branches of government, but such behavior can be awkward. Indeed, in 1983, in Marsh v. Chambers, the Supreme Court passed on an earlier opportunity to expel prayer from a government body, choosing, instead, to defer to the “unique history” of legislative prayer in America.

Given so much history and precedent, one might assume there is little reason to anticipate much excitement coming out of Galloway, and that might be true were it not for the Second Circuit opinion Galloway requires the Supreme Court to review. That opinion is nothing short of brilliant.

Whether its authors intended to, the opinion lays out a roadmap, which could ultimately lead to the end of invocations at government meetings in America while circumventing the awkwardness of ignoring more than two centuries of practice. It does so by suffocating prayer to open government meetings rather than banning it outright. Under the Second Circuit test, governmental bodies would quickly find opening with prayer confronted them with great risk and little benefit, and, therefore, those governments would probably voluntarily have to abandon the practice. As the saying goes, if you can’t kill the beast in battle, create the conditions that will facilitate its death.

At first glance the test advanced by the Second Circuit sounds legal enough. In it, courts are asked to determine “whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs.”  In particular, a court would consider “the governmental body’s prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials.”

Yet, a closer examination yields a much different sense of the test. Indeed, even the Second Circuit acknowledges its test provides “limited guidance,” requires “delicate balancing,” and can be offended by “even a single circumstance.” Under it, “any number of different legislative prayer practices could be read to yield any number of messages—acceptable or forbidden—about religion” and, thus, final outcomes under the test must rely heavily on a particular judge’s “exercise of legal judgment.”

The Second Circuit concedes that within the test, “the best of motives may still have trouble preventing the appearance of religious affiliation” and ultimately concludes all these “difficulties may well prompt municipalities to pause and think carefully before adopting legislative prayer” even when “they are not grounds on which to preclude its practice.”

The propensity of the Second Circuit’s test to whipsaw and confuse a government entity arises on multiple fronts. For example, the test requires that a government body’s “process for selecting prayer-givers” must “result[] in a perspective that is substantially neutral amongst creeds.” It then insists, however, that this process can neither be as purposeful as “actively pursuing prayer-givers of minority faiths” nor as random as a lottery or alphabetical progression through the phonebook. Indeed, the only selection process that may meet the test is one that “publicly opened its prayer practice to volunteers.”

The test also requires a government body to be responsible for the content of an opening prayer. Yet, under the test, that body can neither consciously select the prayer-giver nor provide anything more than minimal guidance for the prayer. Prayer-givers should not be told, for example, to be nonsectarian because such instruction could create the perception of the “establishment of ‘an official or civic religion,’” but if a sectarian prayer is delivered, it is to be understood by an ordinary, reasonable observer as an endorsement of a particular religious group. Furthermore, although prayer-givers are to open a group meeting, they must know to pray “only on behalf of themselves” and to refrain from speaking in “the first-person plural: let ‘us’ pray, ‘our’ savior, ‘we’ ask, and so on.”

Furthermore, the test’s attention to “the contextual actions (and inactions) of prayer-givers and town officials” creates the quintessential Catch-22. If members of the governmental body “participate[] in the prayers by bowing their heads, saying ‘Amen,’ or making the sign of the Cross,” they run the risk of being perceived as endorsing the prayer-giver’s religion. However, when they fail to do these things, they may be accused of “disrespect for the invocation.”

The question presented by Galloway is not who wins or loses, but whether the Supreme Court will allow invocations to be what Chaplain Black made them in the Senate this month: a transcendent moment where a widely-respected individual also unifies participants, reminds them of their accountability, and inspires them to acts they did not believe were humanly possible.

If the Court embraces the Second Circuit’s test while merely altering Galloway’s outcome, then that understanding of an invocation will be lost. Invocations will be delivered by anyone, free to say anything whether they believe it or not, at least until the inevitable speaker shows up who is sufficiently offensive that a court must shut the whole thing down. Those at the meeting will be forbidden both to participate and not to participate, and all the while advocacy groups will be sending the government body threatening letters about lawsuits and attorney’s fees. With so little to gain and so much to risk, most municipalities will indeed “pause and think carefully” about perpetuating legislative prayer.

In Marsh, the Supreme Court maintained that the First Congress saw opening prayers as a way “[t]o invoke Divine guidance on a public body entrusted with making the laws.” Those members saw opening prayers as more than that, however. The First Continental Congress had used the Declaration of Independence to emphasize to King George that there is a power greater than kings, a power who makes kings accountable to their subjects, a power who insists that people have a right to cast off kings when those kings forget how to serve their people. When the members of the First Congress of America heard the prayers of their chaplain, they no doubt were reminded that the same “Creator” who had made King George accountable to them was still around holding them accountable to their fellow Americans.

When Chaplain Black, in a moment of crisis, called on senators to replace “stubborn pride” with humility, to “admit and correct mistakes,” and to put their neighbors before their party, he spoke with an authority that hearkened back to the creation of our nation. Chaplain Black’s words spoke to an “Almighty God,” but they echoed upon the hearts of the senators assembled in that chamber, reminding them that in America no public official can rise so high nor amass such power that he can escape accountability to those he has been called to serve.

In his act of petitioning a transcendent, Chaplain Black called even the skeptical who had gathered with him to aspire to a will greater than their own and reminded all present that even the greatest can be answerable to a power greater than themselves. We ought to think carefully before we insist our Constitution prevents the utterance of such words.

Greg Randall Lee is a Professor of Law at Widener University. Professor Lee teaches and writes in the areas of torts, professional responsibility, advanced torts, and constitutional law.

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