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Craig Parshall, General Counsel

 

Public Prayer: High Court Parts the Curtain

November 14, 2013

Something significant happened last week when the Supreme Court considered the issue of public prayer: a few of the Justices gave Americans an unusually candid peek behind the judicial curtain, revealing some provocative opinions on the role of faith and the purposes behind the First Amendment’s religion clauses. The case was Town of Greece, New York v. Gallowayand it centers on the practice of the Town to open its monthly board meetings with prayer. The Town has invited, without limitation, members of the public, including clergy, to deliver a short prayer at those meetings, but gave no restrictions on content or theme. The lower court ruled that, despite the fact that invocations were offered from persons of a variety of different faiths, the predominance of “sectarian Christian prayers” meant that the Establishment Clause of the First Amendment had been offended. That decision was appealed, and in oral arguments before the Supreme Court last Wednesday, some of the Justices took the occasion to travel outside the facts of the case and to offer up a fascinating, and somewhat troubling, view of religious liberty in our nation.

Justice Stephen Breyer commented, “in my own opinion … a major purpose of the religion clauses is to allow people in this country of different religion[s], including those of no religion, to live harmoniously together.” Later, as counsel for the parties continued their arguments, Justice Elena Kagan picked up on those comments and remarked, in a similar vein, “[p]art of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way.”

No one would deny the benefit of societal peace and harmony. The point, though, is whether those goals are what really energized and directed the Founders to recognize in our First Amendment the notion of religious freedom in the first place. To the contrary, my reading of the historical record tells me that religious freedom was recognized at our nation’s founding as a good in itself. The consensus back then was that a belief in, and acknowledgement of, a sovereign God was an inherent liberty and privilege, indeed a spiritual duty, originating not from government, but from God. When Justices Breyer and Kagan (and I would surmise a few others on the Court as well) indicate that “peace and harmony” is the goal, then we can predict, ironically, that a very un-peaceful assault on faith will result. After all, under the view of Breyer, Kagan, et al., the concept of religious freedom would be ultimately reduced to a kind of de facto social bromide, permitted in practice only to the extent that it can keep the masses quiet. Such a utilitarian idea reduces faith in God to a mere social component for the courts to protect, or not, whichever way they wish, as long as the perceived goal of community harmony is being pursued.

If the majority of the Court adopts that legal philosophy, making the lack of social disruption the ultimate mission, the protection of Christians in particular will necessarily be diminished – and dramatically. This seems obvious, considering the fact that Jesus proclaimed a Gospel that not only saves sinners but can also be religiously, as well as socially, divisive. After all, rightly understood, the claims of Christ are extraordinarily exclusive. In fact, His claim to be the only Mediator between God and man is unique among the history of the world’s religious figures. Of course, inner peace is available to everyone who trusts in Christ and His shed blood; and Christians believe that harmony will someday be the settled state of affairs in the universe under His reign. But when it comes to matters of constitutional policy, neither peace nor harmony should be matters placed on the Supreme Court’s docket when it decides the next case involving the values of the First Amendment.