pageok
pageok
pageok
Denominationally Specific Legislative Prayers:

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.

Dilan Esper (mail) (www):
This is the problem with "ceremonial deism". If you allow it, you end up having to draw minute distinctions between what governmental religious expressions are OK and what ones aren't. If you don't allow it, then there's a huge public backlash over Ten Commandments displays and public crosses and the Pledge of Allegiance. (Plus, there is a question of how far people have to go under a strict separationist approach-- do you have to remove sculptures of Moses among other lawgivers, for instance?)

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.
10.28.2008 9:22pm
Atheists of Cobb County Unite:
So when do the atheists get to give an invocation asking the commissioners to not seek guidance from a god that does not exist, but to use their own judgment?
10.28.2008 9:33pm
ReaderY:
In Marsh, there was a single paid chaplain. The 4th Circuit, in holding that a Wiccan priestess wasn't entitled to an invitation to serve as chaplain, found that legislative prayer stands outside the First Amendment in part because it is for the legislators' personal benefit, as distinct from something (like school prayer) the legislature imposes on the people. Under this theory, legislators are pretty much entitled to select chaplains they find personally agreeable. The 4th Circuit found legislatures could limit chaplains and prayers to within the "Judeo-Christian tradition," including having a single chaplain or small number of chaplains if they wanted, so long as the prayers weren't denominational in character.
10.28.2008 9:47pm
Bpbatista (mail):
Is this really the "establishment of religion" that the Founders intended to prevent? The courts are so off base on this topic that they may as well be interpreting the Venutian Constitution.
10.28.2008 10:21pm
J. Aldridge:
The majority SHOULD had concluded that its result was consistent with divisions of powers under the Constitution and original jurisdiction (Framers of the 14th amendment did not tamper with original jurisdiction for good reasons.)
10.28.2008 10:27pm
Jon Rowe (mail) (www):
Figuring out the letter of what the FFs intended on the EC and then applying it to present circumstances isn't an easy task. Arguably one could conclude legislatures could make whatever kind of prayers they want -- explicitly sectarian Christian prayers, sectarian Mormon prayers in Utah, prayers to Allah, Satanic prayers or whatever. However the spirit of the Founding is actually quite inclusive for its time and even for the present day. In an era where we criticize the FFs for being white slave holding, propertied sexists, on religion in many respects the key Founders were way ahead of their time. I'd like to write a pluralistic heterodox prayer using the words of just John Adams, who isn't even regarded as that liberal a Founding Father. And I think the Federal government should demand that this be the official prayer of the nation. Every federal, state and local government entity should begin with such a prayer.

Here are some heterodox quotations of Adams that we could use as grist for the mill of the prayer:


It has pleased the Providence of the first Cause, the Universal Cause, that Abraham should give religion not only to Hebrews but to Christians and Mahomitans, the greatest part of the modern civilized world.

– John Adams to M.M. Noah, July 31, 1818



Where is to be found Theology more orthodox or Phylosophy more profound than in the Introduction to the Shast[r]a [a Hindu Treatise]? “God is one, creator of all, Universal Sphere, without beginning, without End. God Governs all the Creation by a General Providence, resulting from his eternal designs. — Search not the Essence and the nature of the Eternal, who is one; Your research will be vain and presumptuous. It is enough that, day by day, and night by night, You adore his Power, his Wisdom and his Goodness, in his Works.

– John Adams to Thomas Jefferson, December 25, 1813.



θέμίς was the Goddess of honesty, Justice, Decency, and right; the Wife of Jove, another name for Juno. She presided over all oracles, deliberations and Counsells. She commanded all Mortals to pray to Jupiter, for all lawful Benefits and Blessings.

Now, is not this, (so far forth) the Essence of Christian devotion? Is not this Christian Piety? Is it not an Acknonowledgement [sic] of the existence of a Supream Being? of his universal Providence? of a righteous Administration of the Government of the Universe? And what can Jews, Christians, or Mahometans do more?

-- John Adams to Thomas Jefferson Oct. 4, 1813



I believe too in a future state of rewards and punishments too; but not eternal.

-- John Adams to Francis van der Kemp, July 13, 1815



I believe with Justin Martyr, that all good men are Christians, and I believe there have been, and are, good men in all nations, sincere and conscientious.

– John Adams to Samuel Miller, July 8, 1820.


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.
10.28.2008 10:46pm
J. Aldridge:
P.S. I thought making respecting an establishment of religion by law against States by Federal Decree was rejected in 1876 (you know, that Blaine Amendment)?

The Federal Judiciary is a very strange place to talk about rule of law.
10.28.2008 10:52pm
Esquire:
Considering all the blatant Christian-specific endorsements of many early US government bodies, could anyone really make an originalist case against it?

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.
10.28.2008 11:33pm
Oren:

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.
10.29.2008 12:01am
Jon Rowe (mail) (www):

Considering all the blatant Christian-specific endorsements of many early US government bodies, could anyone really make an originalist case against it?


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.


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.


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.
10.29.2008 12:06am
Esquire:
Jon, I don't dispute that it's about whose ox is being gored; I was just noting the double-standard by the left.

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.
10.29.2008 1:11am
Bruce_M (mail) (www):
All across America, government is horrendously and pathetically ineffective, from local county commissioners' courts to Congress. And it seems the vast majority, if not 100% of these legislative bodies begin their sessions with a prayer.

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.
10.29.2008 3:08am
Milhouse (www):

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.

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.
10.29.2008 3:37am
M O'Brien (mail):
This unitarian, universalist prayer notion is silly, especially when you're using John Adams as an example. He was all about the theory -- yeah, in theory, everything's okay and really deep down it's Christian. But in practice, he went to one perfectly ordinary Catholic sung Mass -- and it freaked him out!

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.
10.29.2008 1:25pm
Dilan Esper (mail) (www):
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.

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.
10.29.2008 3:12pm
Fub:
Jon Rowe wrote at 10.28.2008 9:46pm:
Where is to be found Theology more orthodox or Phylosophy more profound than in the Introduction to the Shast[r]a [a Hindu Treatise]? “God is one, creator of all, Universal Sphere, without beginning, without End. God Governs all the Creation by a General Providence, resulting from his eternal designs. — Search not the Essence and the nature of the Eternal, who is one; Your research will be vain and presumptuous. It is enough that, day by day, and night by night, You adore his Power, his Wisdom and his Goodness, in his Works.

– John Adams to Thomas Jefferson, December 25, 1813.
Yes, a shast[r]a is a Hindu religious treatise, sometimes commentary on particular subjects, and sometimes a record of words allegedly spoken by particular figures on particular occasions. The Pali and Sanscrit canons include many thousands of shastra. Some are major (upon which various religious sects have been based) but most, of necessity, are minor. Many are commentary on other shastra.

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:
According to the Shasta, Moisayer, with his companions, rebelled against the Eternal, and were precipitated down to Ondero, the region of darkness.
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.
10.29.2008 4:08pm
Bob from Ohio (mail):
Put "Congress shall make no law" back into the 1st Amendment. Then you don't have any religious cases in federal court.

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.
10.29.2008 4:09pm
Jon Rowe (mail) (www):
Fub:

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.
10.29.2008 4:33pm
Dilan Esper (mail) (www):
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.

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.
10.29.2008 4:44pm
DanG:
Reader Y referred to 4th Circuit case, which is Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir.), cert. denied, 126 S. Ct. 426 (2005). You can check out a discussion of the case here.

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.
10.29.2008 6:25pm
Fub:
Jon Rowe wrote at 10.29.2008 3:33pm:
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.
The Adams/Jefferson "shastra" was possibly the Ezour Vedam (AKA "The Jesus Veda"), cited by Voltaire in his "Veidam" (who believed it to be real).

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.
10.29.2008 7:45pm
Jon Rowe (mail) (www):
Fub:

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).
10.29.2008 9:27pm
ReaderY:
In general, Benjamin Franklin's approach, which was somewhat easygoing and tolerant, thinking of religion and prayer as a generally good thing without shoving anything down anyone's throat too hard, seems increasingly appealing. Was Franklin naive or was the appearance of naivete part of a more sophisticated approach?
10.29.2008 10:34pm
Jon Rowe (mail) (www):
Franklin was another FF too tolerant for today's evangelicals. Yet, he wasn't a strict Deist either as some secular folks have painted him to be. Here Franklin notes it was appropriate for Muslims to preach Islam in American Churches. There was a meeting house he helped build for the people's "religion" whatever it might be, orthodox Christianity or if the people so desired, Islam.


Both house and ground were vested in trustees, expressly for the use of any preacher of any religious persuasion who might desire to say something to the people at Philadelphia; the design in building not being to accommodate any particular sect, but the inhabitants in general; so that even if the Mufti of Constantinople were to send a missionary to preach Mohammedanism to us, he would find a pulpit at his service.
10.29.2008 10:46pm
ReaderY:
Yes, the 4th Circuit case I had in mind was Simpson v. Chesterfield County Board of Supervisors.

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:


Moreover, Chesterfield, unlike Great Falls, did not invite the citizenry at large to participate during its invocations. Board members made clear in depositions that the invocation "is a blessing . . . for the
benefit of the board," rather than for the individual leading the invocation or for those who might also be present. In other words, Chesterfield’s
invocations are "directed only at the legislators themselves," as the court in Wynne explained that they should be.



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:



In noting the Presbyterian identity of the chaplain in Marsh, the Court recognized the reality that any choice of minister would reflect, if not denominational preference, then at least denominational awareness.
Id. at 793. A chaplain by definition is a member of one denomination or faith. Yet this did not cause the Court in Marsh to void the practice of the Nebraska legislature. A party challenging a legislative invocation practice cannot, therefore, rely on the mere fact that the selecting authority chose a representative of a particular faith, because some adherent or representative of some faith will invariably give the invocation....The Court, neither in Marsh nor in Allegheny, held that the identity of the prayer-giver, rather than the content of the prayer, was what would "affiliat[e] the government with any one specific faith or belief."


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.
10.29.2008 11:06pm
ReaderY:
When people say that if anyone gives an inch or even thinks about making any sort of compromise on religion issues we're all going to fall down the slippery slope and start burning people at the stake, Benjamin Franklin seems the logical counterexample. He was the one who proposed that the Constitutional Convention bring in a chaplain and say prayers. And yet can anyone imagine him burning anyone at the stake or think of him as a threat?
10.29.2008 11:16pm