[Richard Painter, guest-blogging, March 27, 2009 at 8:40pm] Trackbacks
A Response on Ethics and Religion:

A few points of clarification.

I am a proponent of prayer. Although the best place is at home or in a house of worship, any place will do. That can include a government building when a government employee is off-duty. Indeed, in addition to attending services regularly at St. John's I at times joined the White House Christian Fellowship for its meetings on the third floor of the Eisenhower Executive Office Building (EEOB). Although the meetings were occasionally spoiled by an overzealous junior staffer or intern who prayed for political opponents and other assorted sinners, in general these meetings were conducted in a dignified manner; they were both informative and inspiring. The White House Christian Fellowship also lacked the problems that made Attorney General Ashcroft's Bible studies vulnerable to the claim that there was pressure to go. None of the most senior White House staff attended and more than once I was the only commissioned officer in the room.

All of this, however, was done in a personal capacity, usually over the lunch hour. Nobody ever characterized this or any other prayer group meeting as an official function of the United States government.

This comports not only with the law, but with my understanding of prayer. I do not pray as a spokesperson for the United States government. I ask forgiveness for my own sins not those of the United States government except to the extent they are in part my own.

The Archbishop did not stop the prayer from going forward, or even try. Neither did I. It is difficult, however, to characterize a meeting that ends with a sectarian prayer, here a Christian prayer, as an official function of the United States government. When the prayer closely parallels the subject matter of the meeting, separating the personal capacity prayer from the official capacity meeting is artificial. It is also difficult to hold a productive meeting to conduct official government business when some employees of the government entity because of their personal religious convictions might not be able to participate in that meeting to the same extent as others.

These may have been some of the problems that the Archbishop wondered about. Regardless of whether a country has a constitutional bar on state establishment of religion -- England in fact has an official church -- the practical problems are the same. It would not matter if the meeting were to be held in the EEOB or in Whitehall in London; if a Jewish or Muslim member of the staff attended the meeting, the situation could get awkward. Personal functions would encroach on the official to an extent that conduct of official business could be impaired.

These are not problems created by lawyers or by bishops. These are problems inherent in any society where people of different faiths live together and conduct the business of government together. I doubt the lines here are best drawn by courts or by legal rules. These lines are best drawn by common sense.

The meeting in my view ended up being unofficial, which is fine. If I had known, I would have suggested that the Archbishop be invited to attend a meeting of the White House Christian Fellowship or some other private group. That was not, however, the original intent of the invitation.

Finally, analogizing this situation to ceremonial functions such as an inauguration or a state funeral is inapposite. There are longstanding traditions of bringing religious elements into these ceremonies, usually in a way which is widely understood not to interfere with the objective and which may even promote it. An interesting law review article could be written on the lawsuit that was served on the Chief Justice demanding an injunction against a Presidential oath ending in "so help me God". Just about everyone, however, could predict the outcome of that litigation. Whatever time the Chief Justice spent reading the complaint probably would have been better invested rehearsing the oath of office.

Once again, I do not claim expertise in Establishment Clause issues. Government ethics rules -- here those against endorsement — are designed to stop people well short of conduct which violates the Constitution. The issue is whether whatever we do, particularly that which we do in an official capacity, interferes with public confidence in the proper functioning of our government.

As an aside, I should respond to one commentator who suggested that a White House ethics lawyer could "take away my money, my job, or my liberty, using the power of the state." Actually, I did nothing of the kind. I did ask several people who voluntarily chose to work for the government to sell some investments, including investment bank stock, at prices far in excess of what those investments would be worth today, while throwing in deferment of capital gains tax with an Office of Government Ethics certificate of divestiture. I have written in my book that this process needs to be simplified. I have to say however that many of the people I helped come into government have a lot to be thankful for, just as the Country should be thankful for their service.

Richard Painter: "I am a proponent of prayer. Although the best place is a house of worship . . . "

Jesus: "But thou, when thou prayest, enter into thine inner chamber, and having shut thy door, pray to thy Father who is in secret, and thy Father who seeth in secret shall recompense thee." (Matthew 6:6)
3.27.2009 9:47pm
Thank you for your posts. They have been thought-provoking and well-measured.
3.27.2009 10:33pm
I wish I had some profound insight or provocative question, but I don't right now and I'll settle for saying thank you for another great post.
3.27.2009 10:59pm
Dave hardy (mail) (www):
Worked for ten years in DC in the government. If somebody down the hall was having a prayer meeting, it was none of my business and they were welcome to pray as they pleased.
3.27.2009 11:06pm
Have we had a post yet on the ethics of ordering the torture of suspects? I see from Mr. Painter's bio that he didn't join the administration until 2005, so it's not as though anything too bad can be pinned on him.
3.28.2009 12:36am
unhyphenatedconservative (mail):

Given Mr. Painter's hand wringing over the prayer, one would think we had been discussing torture.
3.28.2009 1:50am
My main disagreement is with the rationale for why some ceremonial deism is OK -- basically relying on quasi-secular appeals to historical entrenchment and the like.

But the only reason it's so entrenched in those traditions is because at some point people actually took it seriously (apparently without thinking it violated the establishment clause and/or ethical concerns). But contemporary interpretations of the establishment clause would not tolerate such a notion, so instead the government (court) actively belittles the religously-motivated roots. Of I see the tactical benefit of such a maneuver for the secularist side, but it doesn't seem as honest, and it imposes the same marginalization (just on a different group).
3.28.2009 8:22am
New London Fog:
Painter is right that prayer at the end of a meeting like that is not obviously unconstitutional, and that its contours should therefore be governed more by taste and common sense than by legal rules. Secularists need to pick their battles, and this doesn't seem like something that's worth getting outraged about (or regulating). It's like getting worked up about nativity scenes -- you're just creating fodder for troglodytes on teevee.

That said, the proposal to have a prayer at the end of a meeting like this sounds awfully self-congratulatory. It'd be nice if there were a much greater social stigma against ostentatious expressions of religiosity by people in government, since such displays are generally either vapid or gross. (I don't get why the pious aren't insulted by the relentless and obvious faith-based pandering of elected officials.)

So feel free to worship, celebrate, proselytize, and believe in whatever absurdities you'd like -- but can't you do it on your own time?

What we need is a deal: Atheists should cut down on the litigation and should stop acting like whiny victims, and Christians should cut back on inserting their private sectarian rituals into American public life. Oh, and they should also stop acting like whiny victims.
3.28.2009 9:03am
Ryan Waxx (mail):
> Given Mr. Painter's hand wringing over the prayer, one would think we had been discussing torture.

unhyphenatedconservative wins the thread.
3.28.2009 9:40am
"Thank you for your posts. They have been thought-provoking and well-measured."

Yeah, but can we get a cloture vote already? He's making the other conspirators look like slackers.

As for the (perhaps awkward) suggestion to close in prayer a meeting with the Archbishop - seems like a "when in Rome" moment, like Obama leaving a prayer at the Wailing Wall, or saluting an officer even when out of uniform, at worst stretching protocol in the interest of courtesy or professional deference.

Now if the Archbishop were off to slaughter some Roundheads or whatnot, that would be one thing, but given that his highest mission these days seems to be to avoid any conceivable offense to any conceivable party, where's the harm?

Billy Graham in a mitre.
3.28.2009 10:00am
kehrsam (mail):
Malthus: I'll pray for you.
3.28.2009 12:24pm
Gosh! I come in today to find that Mr.Painter has a very interesting perspective on the torture memos and OLC procedures.
3.28.2009 4:06pm
D Kosloff (mail):
"But contemporary interpretations of the establishment clause would not tolerate such a notion"

But an accurate interpretation cannot change the orignal meaning of a statement. Thus, the contemporary interpretations are in error, or dishonest.
3.28.2009 9:57pm
There is a jurisprudence on exactly what content a prayer at an American official function can have and not be considered overly sectarian, as well as what kind of functions prayer is acceptable at.

There is a detailed discussion in for example Simpson v. Chesterfield County (4th Cir. 2005), which held that a county board was not required to invite a Wiccan priestess to conduct its legislative invocational prayers because it is entitled to limit participants and prayer content to those in the "Judeo-Christian tradition".

The case is an application of the U.S. Supreme Court's Marsh v. Chambers decision, which upheld a state legislator's practice of hiring a paid chaplain and conducting legislative prayers. Among other reasons for upholding the practice, the court explained that the first U.S. Congress hired a chaplain even as it was debating the Bill of Rights. It also explained that legislative chaplains and prayers are for the use and benefit of legislators themselves, who are free to decide how they wish to conduct themselves, and hence represent a different case from a situation where the legislature imposes prayers on the general public at large.

The Marsh v. Chambers opinion said that legislative prayer within the "Judeo-Christian tradition" was constitutionally acceptable.
3.28.2009 10:30pm