Prayer and the Pledge : Socratic Rhythm Method

by Matt Barr

Prayer and the Pledge

Did you notice that Friday was a National Day of Prayer? I didn't. I distinctly remember that the beseiged mentality after September 11 that made everyone quit getting all in each others' faces lasted until President Bush declared September 14 a National Day of Prayer, which roused who you'd expect out of their torpor.

I don't have any trouble believing Shirley Dobson wants to exploit a disaster like Katrina to promote prayer. But a President, mindful that the modern job description includes Feeling America's Pain and Bringing America Together and etc., is probably more interested in facilitating a communion that most Americans can get behind.

Government has proven itself time and again the entity you turn to when you want to manage things in the least responsible, least efficient and most corrupt way, so why anyone would get excited about the kind of "excessive entanglements" with religion the Supreme Court will let them get away with is beyond me. But let's look at the reasons the Supreme Court sanctions official prayerlike activities conducted by government officials funded by taxpayers, to see if there's anything we can learn about the Pledge of Allegiance.

In Marsh v. Chambers, the Court (in its most excellent beneficence) allowed the Nebraska legislature to continue to begin its sessions with a prayer from the civil servant/chaplain it hired. A member of the Nebraska legislature challenged the procedure on First Amendment grounds, and was promptly not re-elected.

There were three reasons why this practice was upheld, beyond Mr. Justice Kennedy's absence from the Court in 1983:

On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.

Tradition may be "the last refuge of constitutional scoundrels" and God may be God and public schools public schools and the First Amendment the First Amendment, and diamonds may be a girl's best friend, and to thine own self you maybe should be true, but you would think that a Congress involved in the drafting of, campaigning for and ratification of a Bill of Rights would see about changing laws and policies that didn't square with it. The note "We'll leave this one to 21st century atheists" appears nowhere in the record of proceedings of any Continental Congress. "In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress -- their actions reveal their intent," the Court said.

We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations.

(Citations omitted.) The Court has upheld "entanglements" whose consequences have a great deal more real world impact than prayers to begin legislative sessions, in that all three of the above involve someone giving money to someone, probably instead of someone else. Never be persuaded by an argument that says "they allow A, B and C, so they should allow D" on its face; that tack is second only to citing statistics for making sure you get your way. I note this argument for its proposition that it doesn't really matter if a bunch of people are praying and you're not.

In further support of that point but from a different angle:

[T]he delegates [to the first Congress] did not consider opening prayers as a proselytizing activity or as symbolically placing the government's "official seal of approval on one religious view." Rather, the Founding Fathers looked at invocations as "conduct whose . . . effect . . . harmonize[d] with the tenets of some or all religions." The Establishment Clause does not always bar a state from regulating conduct simply because it "harmonizes with religious canons." Here, the individual claiming injury by the practice is an adult, presumably not readily susceptible to "religious indoctrination" or peer pressure.

(Citations omitted again.) The Congressional chaplain leading the Congress in prayer did not amount to an "official seal of approval." Little did Chief Justice Burger know that subsequent Courts would set the bar very much lower, at least with respect to children.

We have, then: the notion that prayer has been part of America since the beginning, little untoward impact on the men involved, and the admittedly quaint idea that not everything that hurts people's feelings is an Establishment Clause violation. I would expand on number two. Is someone really getting it good and hard from the government when it asks people to pray, or even recite a Pledge of Allegiance? I've been told it's not fair of me to reduce this all to hurt feelings, but I've read this:

Each adult plaintiff claims that he or she has been made to feel like a “political outsider” due to the “government’s embrace of (Christian) monotheism in the Pledge of Allegiance.” Compl. at 13. The parents contend that they are deeply involved in the education of their children, and that they have attempted to participate in school matters, but once their atheism becomes known, it interferes with their ability to “fit in” and “effect changes within the political climate of parent-teacher associations,[and] school board meetings.” Id. Finally, the adult plaintiffs maintain that they are placed in an untenable situation requiring them “to choose between effectiveness as an advocate for his or her child’s education, and the free exercise clause [sic] of his or her religious beliefs.”

And don't know what else to tell you. If it makes you feel any better, it might work.

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Comments

Ed Brayton posted:

Just a small quibble. I agree with you that congressional chaplaincies and non-coercive days of prayer are no big deal, but I don't think the quote about the founding fathers is accurate. At least one of them, the most prominent in terms of the framing of the first amendment, did in fact argue that congressional and even military chaplaincies were a violation of the first amendment, as were non-coercive proclamations of thanksgiving and the like. That was James Madison. In his Detached Memoranda, he wrote:

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?
In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt

Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex: or to class it cum "maculis quas aut incuria fudit, aut humana parum cavit natura."

Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right pinciple, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look thro' the armies & navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the Shepherds, be most in view: whether here, as elsewhere the political care of religion is not a nominal more than a real aid. If the spirit of armies be devout, the spirit out of the armies will never be less so; and a failure of religious instruction & exhortation from a voluntary source within or without, will rarely happen: and if such be not the spirit of armies, the official services of their Teachers are not likely to produce it. It is more likely to flow from the labours of a spontaneous zeal. The armies of the Puritans had their appointed Chaplains; but without these there would have been no lack of public devotion in that devout age.

The case of navies with insulated crews may be less within the scope of these reflections. But it is not entirely so. The chance of a devout officer, might be of as much worth to religion, as the service of an ordinary chaplain. [were it admitted that religion has a real interest in the latter.] But we are always to keep in mind that it is safer to trust the consequences of a right principle, than reasonings in support of a bad one.

He then goes on to say the same thing of proclamations of thanksgiving and days of prayer. So the notion of strict separation can certainly be traced to this most important of framers of the first amendment. He was opposed, of course, by Washington and Adams in this regard, who certainly opposed establishments of religion but argued that the inculcation of a civic religion would help support public and private virtue and that as long as the government's recommendations were not binding upon the individual, they were okay. Both strict separation and accomodationism can be traced directly to the most important founding fathers.

By the way, love the name of your blog. I'm an old Rush fan too.

September 20, 2005 12:17 PM

MJB posted:

I hear you, but think Burger was appropriately looking at whether the imminent ratification of the First Amendment prevented Congress from creating its own chaplaincy and whether its ratification made them stop. I would expect there to be arguments like Madison's, and I'd expect them from Madison, but they didn't carry the day. Whether Madison, viewed from the 1980s, turned out to be right or not, it's difficult to declare that all of a sudden this 200 year old practice violated a provision of the constitution that was that old itself.

September 20, 2005 1:27 PM

Ed Brayton posted:

I think the fact that the most important founder in terms of the wording and framing of the first amendment did interpret it that way at the time certainly suggests that the "all of a sudden unconstitutional" argument isn't really accurate. His position was that it was unconstitutional at the time as well. Jefferson took a similar position. But just as obviously, this was not the only interpretation among the founders and this was long before the courts had asserted their overview authority to decide such questions so practice simply differed from administration to administration. That doesn't mean that strict separation is the true and correct interpretation, and I'm not arguing that it is. I'm only arguing that it's a reasonable position that can be traced to both the principle and practice of the founders themselves. I make the same argument to strict separationists about the accomodationist position when they declare that accomodationism is contrary to the intent of the founders. It's just not as simple as saying that either one is contrary to the original intent or meaning because we have two competing positions that can both lay claim to the same pedigree. There is a reasonable middle ground position to be taken in favor of both views, but I don't think the extreme version, the "this is so obvious because the other view is so clearly wrong" claim, of either view is compelling. There's just too much oversimplification that goes on by both sides in this dispute.

But as I said, it was a mere quibble. I tend to agree with you and not get fired up about minor and non-coercive government endorsements. I certainly don't care about tiny crosses on city seals, or a cross on public land in the Mojave desert, or whether the President has an invocation at his inauguration, or whether a President declares a day of prayer after a natural disaster (I just ignore it, as others should do). When it comes to children in public schools, I do think we have to be a lot more careful, however, and I think the courts have generally recognized that. There's a big difference, for instance, between a President issuing a call to prayer that no one is bound to follow and a school forcing children to recite a prayer every morning before school. It's the difference between a suggestion that one engage in a religious practice and a coercive demand that one do so. The court was certainly correct in striking down the latter practice, despite the constant ranting we hear about how evil the courts were for "taking God out of the schools".

September 20, 2005 4:06 PM

MJB posted:

When you think about it, if it were an easy question it wouldn't have come before the Supreme Court in 1983. Commentators sometimes scoff at the resort to "tradition," but that's all precedent is -- when faced with a similar decision previously, this is how it was handled. As you say, the 1780s were before the Supreme Court was accepted as the final review of Congressional action, so our "precedent" is how the question was resolved when it was, which is by continuing with the practice -- over, certainly, reasonable objections by influential people.

It's interesting fodder for discussion. I don't like it when people run to court when they're offended by something; I do like it when people say "this is stupid, so let's ignore it, or change it." (I like it even better when nothing stupid happens, but that's not often.) As you suggest it's when ignoring it isn't an option except possibly on pain of punishment that you have a bigger problem.

September 21, 2005 9:48 AM

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