Religion & US Constitution -PART II

[For part I, see: Religion & US Constitution ]

For most people, including new Americans, the topic is quite bewildering until a few facts & principles emerge, giving clarity to the picture. This may help one negotiate public behaviour (both as individuals, and members of religious institutions) in an appropriate manner.

Continuing the discussion on the Establishment Clause, we see how the Courts have a slightly different take when it comes to the Religion in the Public Square, dealing with adults, not kids. Prayer seems ok if in a legislative chamber, but not if in a courtroom; and public displays of religious symbols are ok if the intent is not to promote a certain religion.

Beyond this basic attitude however, there are contentious grey areas. A non abrahamic person not being allowed to be a Chaplain leading services of govt. bodies is ok, since there is historical precedent of Abrahamic religion's presence. A Wiccan religion (‘pagan' pre-Christian religion enjoying a bit of a revival) petition got thrown out for this reason.

The Prayers are supposed to be inclusive & free of references to specific religious personalities (eg. Jesus).

The supreme (and other) courts traditionally open with "God save the United States and this Honorable Court." But, courts have consistently prohibited judges from opening courtroom sessions with prayer. So one guesses that the quoted phrase above is not considered a prayer.

About public displays, the Court has said that the Ten Commandments are an undeniably religious document, and although the commandments may well have influenced the development of secular legal and moral norms, the religious message predominates. Hence introducing them amounts to state sponsorship. But where they have been historically present, they don't need to be removed, as that would mean government interference by acting against religion!

This is shown in a pair of 2005 decisions, McCreary County v. American Civil Liberties Union and Van Orden v. Perry. The two cases involved two very different displays of the Ten Commandments, and produced sharply divided – and very different – decisions by the Court. In McCreary County, the Court held unconstitutional the presentation of the Ten Commandments inside a pair of county courthouses in Kentucky. But in Van Orden v. Perry, a majority of the Court determined that a stone monument of the Ten Commandments, located on the grounds of the Texas State Capitol, did not violate the Establishment Clause. A highly contextual contradiction!

Here is the doctrine used frequently by judges:

Justice (now Retd.) Sandra Day O'Connor seems to have developed the details. The Court looks at displays from the position of a reasonable observer, and the message such an observer receives, whereas the majority was more focused on the message that the city intended to send.

O'Connor would ask whether a reasonable observer, on viewing the presentation as a whole, would believe that the government had embraced the religious message of Christmas.

That embrace, O'Connor reasoned, might lead an observer to believe that he or she was a political "outsider," one who is a lesser member of the polity based on religion.

Any government action that creates political insiders and outsiders based on faith, O'Connor concluded, violates the Establishment Clause.

For more, read the whole excerpt below: [see pg 97]

Prayer, the Public, and the Constitution: An Introductory Guide [Essay contributed by Dr. Robert Tuttle; Professor of Law and David R. and Sherry Kirschner Berz; Research Professor of Law & Religion The George Washington University Law School]


Religion in the Public Square [Pg 97 and later of PDF]

In many respects, the setting of public education is unique within our government. Students are required to attend school, and expected to respect and listen to the teachers and officials charged with their instruction. Taken together with their age, these characteristics mean that students are especially impressionable, and thus vulnerable to indoctrination by school-sponsored religious instruction or worship. The same characteristics are not present, however, in most other areas of public life. Because of this difference, the Establishment Clause law governing religion in the public square is more complicated, but generally less restrictive, than the law governing religion in public schools. Although the same two general principles apply, the Supreme Court has often found that particular public displays or expressions of religion do not indicate unconstitutional government support for or endorsement of religion. This law has developed in two general areas: prayer in legislative settings, and public displays of religious symbols or writings.

Legislative Prayer

In its 1983 case, Marsh v. Chambers, the Supreme Court first directly considered a practice that had long been mentioned in its Establishment Clause decisions – the practice of legislative prayer.

Nebraska's state legislature, like the U.S. Congress and most other state legislatures, opened each day's official business with an invocation. Although some states relied on unpaid volunteer chaplains to provide the opening prayer, a salaried chaplain was responsible for the Nebraska legislature's invocation. In this respect, too, Nebraska's practice was shared by many other states and the U.S. Congress.

A member of the Nebraska legislature, citing the Court's school prayer decisions, filed suit alleging that the practice of legislative prayer, and payment of the legislative chaplain's salary, violated the Establishment Clause.

After the lower courts held the chaplaincy program unconstitutional, the Supreme Court reversed. The Court's primary basis for this decision was historical. Legislative prayer, the Court found, has been practiced since the very beginning of the nation, in both the federal and state legislatures. Nebraska's legislative chaplaincy goes back over a century, and even Virginia's legislature – which was led by the chief proponents of church-state separation in the early republic – has consistently opened its legislative sessions with prayer.

This history, the Court reasoned, reflects more than just the fact of an uninterrupted tradition: it tells us something important about what the drafters of the First Amendment's Religion Clauses intended by the words "establishment of religion."

The same Congress that decided on the language of the First Amendment also created the positions of paid legislative chaplains, and opened each session with an invocation. The Court concluded:

"It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable."

If historical precedent were the only basis for the decision, however, then Marsh would have relatively little legal significance beyond legislative prayer. But the Court provided an additional justification for its decision to uphold the practice of legislative prayer, one that helps to guide judgments about other practices of public prayer.

The Court noted three characteristics of the legislative prayers.

Legislators, unlike the schoolchildren in Engel and Schempp, are not compelled to attend the opening invocation.

Nor are legislators, as adults, particularly susceptible to "religious indoctrination."

Moreover, the Court pointed out that "the prayer opportunity has [not] been exploited to proselytize or to advance any one, or to disparage any other, faith or belief."

Taken together, these three characteristics suggest that legislative prayer fulfills the same role as the Supreme Court's own words of invocation, which are said at the beginning of each session: "God save the United States and this Honorable Court."

The prayer is part of a traditional ceremony that solemnizes the proceedings that the body is about to undertake, not a religious observance in which the state asserts or promotes religious truth.

The Nebraska legislature's practice of using an inclusive prayer to create the sense of solemnity in the proceedings, the Court concluded, "is simply a tolerable acknowledgment of beliefs widely held among the people of this country." The ceremony recognizes that a religiously inclusive invocation creates, for most members of the legislature (and the public as well), an appropriate air of dignity and respect for the day's business.

In numerous cases over the past two decades, lower federal courts have been called on to interpret the analysis from Marsh in different contexts. These cases differ from Marsh in one of three ways: the institutional setting of the prayer, the identity of the chaplain(s), and the content of the prayers.

Institutional Setting

The Supreme Court's opinion in Marsh placed great emphasis on the legislative context for the prayers, because the Court's decisive historical precedent was the first Congress's appointment of a legislative chaplain.

Application of Marsh in other contexts has given rise to some uncertainties. Some settings appear to be essentially the same as a federal or state legislature – such as a city council or county board of supervisors.

The sole question in such cases tends to be whether the adoption of a new practice of legislative prayer, rather than continuation of one with over a century of tradition (as in Nebraska or the U.S. Congress), should make the practice unconstitutional.

Courts have typically concluded that the time any particular body adopted the practice is irrelevant, because the general practice of legislative prayer was not intended to be covered by the Establishment Clause.

More difficult cases arise outside the normal legislative setting. For example, courts have consistently prohibited judges from opening courtroom sessions with prayer.

The courtroom, these decisions conclude, differs from legislatures in that those listening to the prayer are often not in court of their own free will. Defendants in criminal and civil proceedings, witnesses, and jurors are all present in the courtroom by order of the government, and thus represent an audience just as much "captive" as the schoolchildren in Engel and Schempp.

In addition, some who have business before the court might believe that the judge will be biased in favor of those who are religious, calling into question the equal standing of all before an impartial court.

School board prayers have brought a range of different decisions and analyses from lower courts. Some courts have treated school boards as if they were simply legislative bodies, and thus permitted to have legislative prayer under the Marsh standard. Other courts have viewed school boards as extensions of the public schools, and focused on the presence of schoolchildren at regular meetings of the board. These children may be present as guests, receiving awards or praise; or as board members, actively participating in setting policies for the schools; or involuntarily, as those appealing adverse punitive or administrative decisions by school administrators.

In whatever capacity, school board meetings involve children, and focus on the education of children. Thus, these courts have ruled that schools must follow the standard set out in Lee v. Weisman, Engel, and Schempp, which prohibits even the inclusive prayers approved in Marsh.

Identity of the Chaplain(s)

A number of other cases have raised challenges to a legislative body's policies for selecting chaplains. In one case, Simpson v. Chesterfield County Board of Supervisors (U.S. Court of Appeals for the 4th Circuit, 2005), a Wiccan religious leader petitioned the county board to allow her to give the opening invocation at its regular meeting. The board's policy was to invite local clergy, and religious leaders from a wide range of faith traditions had been invited to offer the prayer.

The board rejected the Wiccan leader's request, however, saying that "Chesterfield's nonsectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." The Wiccan leader sued, arguing that the board's restriction violated the Establishment Clause.

The federal appellate court rejected the leader's claim, and held that the county board was free to select clergy of any religious tradition that it wanted to deliver the prayer. The legislative prayer, the court reasoned, was not a public forum for the dissemination of religious views, but a ceremony under the control of the county board.

If the Supreme Court had upheld the Nebraska practice of legislative prayer, in which the same paid chaplain, a Presbyterian minister, had delivered the invocation for 16 years, then Chesterfield County could choose to invite only ministers from within the Abrahamic faiths.

Other courts, however, have suggested that selection of chaplains should be governed by standards of religious equality.

Content of the Prayers

The key to the appellate court's decision in Simpson v. Chesterfield County is the content of the legislative prayers. Because the prayers were not delivered as part of a "public forum," the court emphasized, the government was constitutionally responsible for the content of the prayers.

Any effort to use the prayers for proselytizing, or to advance or denigrate a particular faith, would suggest that the prayers were not merely ceremonial, but rather an attempt to promote religious faith.

The county board avoided this potential problem by its clear and consistently enforced policy:

each invited cleric was informed that prayers must be nonsectarian, and specifically asked members not to mention specific divine names, a reference designed in response to some Christian clergy beginning or ending prayers "in the name of Jesus Christ."

A number of other cases have confronted the question of specific religious references in legislative prayers. These cases turn on the various courts' interpretations of the Supreme Court's majority opinion in Marsh, which approvingly noted that the Nebraska legislative prayers did not proselytize for, advance, or denigrate any religion.

Some courts have found that a consistent pattern of "sectarian" references to a particular deity, such as prayer "in the name of Jesus Christ," could represent an impermissible effort to advance a particular faith, and might thus fall outside the practice approved in Marsh.

Other courts have not found such references to be inconsistent with the practice approved in Marsh, and would hold legislative prayer unconstitutional only if the prayers were to expand from a traditional ceremonial invocation into something more like a sermon or service of worship.

Considering the extent of divergence in decisions of the lower federal courts, not just on the issue of the content of the prayers, but also on the variety of settings and the selection of clergy, the Supreme Court may choose to review one or more of these decisions in the coming years, and perhaps bring greater clarity to the field.

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