Today's decision of the U.S. Court of Appeals for the Eleventh Circuit in Pelphprey v. Cobb County upholds the Cobb County Commission's practice of having invited clergy give prayers before commission meetings, and invalidates the Cobb County Planning Commission's practice.
Before both commissions, the clergy often gave prayers specific to their religions, invoking the holy figures of their religions (e.g., Jesus, Allah, etc.). The difference: The County Commission seemed to be pretty much randomly choosing clergy from the phone book and similar source; the Planning Commission seemed to be deliberately limiting its selection process to Christian clergy (and excluding some groups even within that category).
The majority concluded that its result was consistent with Marsh v. Chambers (1983) — the Court's somewhat opaque legislative prayer case — and later Establishment Clause caselaw. The dissenting judge argues that Marsh should be limited to state and federal legislatures, and shouldn't include local government entities.
I'm not sure whether the majority's general analysis of Marsh and later cases is entirely right, though on first read it strikes me as fairly persuasive. But the dissenting judge's attempts to distinguish local government entities from state and federal legislatures strikes me as unsuccessful.
Note that even if one adopted the approach of someone like Scalia and scaled back the Establishment Clause, you'd still have this problem, as even Scalia claims sectarian preference is unconstitutional. If you went all the way to where Thomas was, you could avert it, but then states would be empowered to compel religious adherence and have official churches if they wished, so that's not a good solution.
Unsolveable problem (as seen in the recent Ten Commandments cases), so we muddle along the best we can.
Here are some heterodox quotations of Adams that we could use as grist for the mill of the prayer:
I think we should construct a national unitarian universalist prayer wholly out of the quotations of the Founding Fathers like Adams just to close ranks and settle the issue that America was founded to be religiously pluralistic so we can get on with the business of running the country.
The Federal Judiciary is a very strange place to talk about rule of law.
Secondly, as a serious Christian I find "ceremonial deism" to be the state endorsement of broadly-defined theology over and above narrowly-defined theology. Alternatively, it could be viewed as state-endorsed trivialization/marginalization of religion.
Indeed. The first amendment should not be construed as the ACLU does, as a shield to protect the polity from public endorsement of religion, but rather as protection for religion against the corruption of a fickle polity.
Yes, given that most of the Christian specific endorsements took place at the state level, that the federal FFs tended to speak in generic Providential language for God (the first 4 Presidents scrupulously avoided any mention of Jesus Christ or any "Christian specific" God talk when invoking God on behalf of the newly established United States of America) and that many FFs (see my quotations on Adams above) were not Christians in the "specific" orthodox sense of the term.
Well now you know how other folks feel when they hear "Christian specific" supplications to God in which they don't believe. Accordingly, then, perhaps the state should be prohibited from recognizing ANY theology, which is pretty close to the Michael Newdow/ACLU/AU position.
Regarding the federal/state dichotomy, I suppose I hadn't fully considered the impact of the incorporation doctrine here...but that's another ball of wax I suppose.
Clearly government is not working when its sessions are initiated with prayer. How about we try it without prayer for a change? You theocrats have had your way long enough to prove beyond any doubt that no god listens to your legislative prayers. Forget the First Amendment issues, let's talk practical issues. Show me a legislature that opens with a prayer and passes comprehensive, effective, efficient, fair, viable laws that solve actual problems and I'll turn a cheek to the improper entanglement of religion and state.
If the thesis is that opening prayer has a positive effect on the quality of the laws passed during a given legislative session, clearly 200+ years of such prayers before the US House and Senate prove this thesis is not valid. That doesn't necessarily mean there is no god (though that is one very likely explanation); it could simply mean they've been praying to the wrong god, or god does not involve himself in human affairs (deism), or that god feels insuring the quality of mankind's legislation is beneath him, or that god hates America and wants our government to fail.
Since legislative prayer clearly has no effect on the quality of legislation produced, the prayer serves absolutely no purpose other than to piss of secular Americans, impugn the First Amendment, and cause Thomas Jefferson to roll around in his grave. Most christians would choose bad legislation over a legislative session devoid of an opening prayer, so deep down inside I think the only reason they keep forcing legislative prayer sessions on America is to mark their domain and control - it's a territorial pissing on the Constitution. Nothing more.
Cite, please. As I understand it, Thomas excludes only the Establishment clause from incorporation, not the Free Exercise clause, so he would not allow a state to compel religious adherence.
So sure, Hindus he didn't know or see practicing their religion were okay, just like Catholic natural law theory was all good to him. But not the actual practice of religion that wasn't his specific New England brand... no, he didn't want to see that!
But he wouldn't have denied that this was so; whereas you seem to have swept that sort of thing under the rug.
Most people are perfectly fine with praying to an indefinite "God" as a mass. But any time you get fancy with it, such as with your rather specific quotes from the Founders, you're going to make trouble. The less said, the better.
Thomas' position is that he would allow states to establish religion, i.e., to create official churches. Presumably, this would allow the state to compel participation in "official" religious ceremonies as part of public events, in the public schools, and in other public contexts; so long as people retain the right to practice their own religions, the free exercise clause would not be violated.
The truth is that I don't think Thomas has thought out what America would really be like if we had state-established religion, and how much work he might need to have the free exercise clause do to preclude people from being coerced into religious participation. Thomas can hold his ridiculous and unworkable position precisely because he has the comfort of knowing it will never be adopted.
To my knowledge, the particular shastra subject of Adams and Jefferson's correspondence in 1813-1814 has not been established. The translations quoted in their correspondence could have come from many different sources. They are somewhat generic boilerplate, roughly like the "begats" establishing lineage in the Christian Old Testament books.
In this respect it is also worth noting that shastra often were written, copied and interpolated by many generations of Hindu scholars and copyists, some of whom had the humility to add disclaimers of the variety "Thus I have heard" or "So it has been said."
Years ago a friend of mine, though not a religious scholar, researched possible sources for the Adams/Jefferson shastra. He turned up evidence for the possibility (not a definitive conclusion by any means) that the particular document was a copy of a forgery by earlier Jesuit missionaries to India, which later found its way back to Europe as a presumed canonical Sanscrit shastra. The Jesuits' putative purpose was to convince Hindu clerics that their religion was congruent with Christianity, so that they could be persuaded to to convert.
Adams gives some inkling of that suggested congruence by indirectly quoting "the shastra" later in his December 25, 1813 letter, where he points out a story somewhat like the story of Satan's fall from Heaven:I must add that my purpose here is not to further complicate discussion of Adam's and Jefferson's views of religion and state. I am only observing in the vein of Dr. Johnson's comment upon seeing a dancing dog, that what is remarkable is not that Adams and Jefferson had deep understanding of Hindu religion. They didn't. What is remarkable is that they knew anything about it at all.
We all know why the 1st was worded that way. Because some states had official churches and Congress was forbidden to tamper with those churches. (No other right in the Bilk of Rights is worded that way.) What happened, over time, well before the 14th Amendment was passed, those churches were dis-established.
No state would today establish an official church.
Most(all?)states have some 1st Amendment counterpart in their state constitutions.
There is no evidence that a theocracy would come if the 1st amendment was no longer incorporated.
The courts have muddled the religious jurisprudence because they are afraid. They know this is a highly religious country and a strict aplication of the establishment clause would ban even the benign Cobb Commissioners practice. They get enough grieve as it is from religious people. So, they create these elaborate doctrines that end up invalidating/approving things on no logical basis. Just judicial whim and whatever motivates Anthony Kennedy.
Clear it all away and let the states deal withit.
Thanks for the comment. Yes, over at my blog American Creation, my coblogger Tom Van Dyke commonly notes Adams, Jefferson, et al. had an only superficial knowledge of the non-biblical religions. They somehow accepted as a premise that most or all world religions worship the same God as Christians and viewed those exotic non-Judeo-Christian religions through that lens. Their theological syncreticism (arguably their overall unitarian theology) reflects a combination of intellectual arrogance coupled with naivte.
The problem with that view is that it is a reductio ad absurdum. There's 4 other rights in the First Amendment, and that interpretation would also mean that those 4 rights would also be unenforceable against state governments.
I suspect the real reason why the First Amendment references Congress is because the Bill of Rights was presented as a bill and there was no reason to keep on going back and referencing Congress in the remaining provisions.
The majority did not take the approach of distinguishing between prayer for the legislators' own benefit and prayer imposed on the people. I think Judge Niemeyer's concurrence did take that approach. The majority held that including Judeo-Christian religions, but excluding wiccanism, hinduism, buddhim, etc., was inclusive enough. There is another 4th Cir. case that strikes down legislative prayer that used the name "Jesus." So, in the Fourth Circuit, you can invoke G-d, but not Jesus.
I think the Eleventh Circuit might have been right in upholding the County Commission's policy (inviting clergy at random), but not the Planning Commission's policy (inviting only Christian clergy only). It seems hard to argue that government has established a religion when it literally gives all religions equal opportunity (but what about the atheists?). But purposely limiting yourself to Christian clergy, or even throwing in the occasional Rabbi so you can say you include all "Judeo-Christians," seems to be a pretty big government endorsement.
Obviously, the debate over the meaning of the Establishment Clause is not going to get resolved in these comments. But even if you think the Framers meant only to prevent Congress from establishing a national church, you'd have to be an original intentionalist to conclude that this is what the Clause means. I think most originalists are original meaning people, so you might say the Clause means government can't favor one religion over others. Now, it may be that in 1789, everyone was pretty much a Christian, save for socially and politically ostracized Jews, Native Americans, and African slaves. So if you thought about favoring one religion over another, all that could have meant was favoring Episcopalianism over Methodism, for example. And, at a time when no one imagined the federal government doing as much as it does today, the only way in which the Framers imagined Congress might have favored one religion over the other was to make one christian denomination a national church. But now that the U.S. has tens of millions of Jews, Hindus, Buddhists, etc., the meaning of favoring one religion over another has changed. And the ways in which the federal government can favor one religion over another have grown beyond what the Framers could have conceived as well.
Apparently the British Physician J.Z. Holwell, FRS, also commented on the Ezour Vedam some decades earlier in the 1760s, and may have been the source for Voltaire. Adams may have been relying on either Voltaire or Holwell, or both. All three made similar points about Hindu consistency or congruence with Christian (and perforce Jewish) religious belief.
But, as I understand it, the Ezour Vedam documents, both in Sanscrit and French, had no reliable provenance of authenticity, and may have been a much earlier pious fraud by Jesuit missionaries in India that boomeranged back to Europe.
I'm certainly no historian. I just find some obscure historical events and side trails fascinating. This one provided many amusing hours of correspondence with a much more academically qualified friend many years ago.
Thanks for your insights. You can read the entire letter for context on google books here (great thing about these letters is they are public domain; the newer eds. that reproduce the letters, for instance the Cappon ed. from which I took my quotation, are not; however google books invariably reproduces many from older eds in the public domain).
Although the I agree the concurrance developed the issue a good deal further, I believe the majority in Simpson did address each of the points mentioned in my previous post. The majority discussed the fact that the prayers were for the legislators' benefit, citing a circuit precedent establishing this reasoning:
While I agree that in the main opinion this was simply one argument of several while Niemeyer's concurrance gave it greater emphasis, the majority's description, while brief, did indicate this was a rule of law based on circuit precedent. ("as the court in Wynne explained that they should be") rather than simply a statement of fact.
THe majority also indicated that in its view a legislature had a relatively free rein in selecting chaplains and suggested that the chaplain's religious identity was not a constitutional issue:
As the Simpson majority noted, the 4th Circuit had explained that it considered the "for the legislators benefit" issue a key rule for articulating the boundaries of March in a previous case, Wynne v. Town of Great Falls
We note that this conclusion accords with the Supreme Court’s apparent intent to confine its holding in Marsh to the specific "circumstances" before it — a nonsectarian prayer preceding public business, directed only at the legislators themselves.
I therefore suggest that the "directed only at the legislatures themselves" theory really represents the view of the 4th Circuit, not just the opinion of a single concurring judge.