WASHINGTON, May 8, 2014 – In the case of Town of Greece v. Galloway, the U.S. Supreme Court ruled that the Constitution allows town boards to start their sessions with prayer, even sectarian prayer. Justice Anthony M. Kennedy, writing for the majority, said the prayers were ceremonial and served to signal the solemnity of the occasion.
The decision built upon the 1983 case of Marsh v. Chambers, which established that prayers before the Nebraska state legislature were constitutional. Since 1983, courts have found that legislative prayers, even sectarian ones, are generally permissible as long as the prayers were not “advancing or disparaging a particular religion.”
Justice Kennedy said that such prayers were “meant to lend gravity to the occasion and reflect values long part of the nation’s heritage.” He said traditions starting with the first Congress supported the constitutionality of ceremonial prayers at the start of legislative sessions. Such prayer, he declared, “is a practice that was accepted by the framers and has withstood the critical scrutiny of time and political change.”
In recent years, there has been a concerted effort to move America toward complete secularization and to remove religion from our public life.
“At the heart of this issue is the notion that any expression of faith in the public square is a violation of a vast mythical wall that some believe must completely separate religion from state,” writes Jonathan Tobin in Commentary. “But while the founders explicitly…forbade one sect, denomination or faith from being empowered by and identified with the state, they did not intend the First Amendment to be used as a shield to prevent Americans from any contact with religion. To the contrary, they saw faith as having an important role in preserving a democratic nation and a civil society.”
Separation of church and state was not, it is clear, meant to mean separation of religion and state—although this is the meaning many would now like to assign to that concept. America was not meant to be a Protestant, Catholic or Jewish nation—-but it was to be a nation which recognized its dependence upon a Supreme Being.
On our coins it is written, “In God We Trust.” Sessions of Congress begin with prayer. The Supreme Court itself starts its meetings with prayer.
What the First Amendment really was saying has been all but forgotten. Judge Thomas Cooley, a leading constitutional scholar of the 19th century, put it this way in his “Principles of Constitutional Law”:
“By establishment of religion is meant setting up or recognizing of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where it might be done without drawing invidious distinctions between different religious beliefs, organizations or sects. The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and to the same extent as formerly.”
Reference to God has been present in our public life from the very beginning. The Declaration of Independence acknowledges God in four separate places. The framers of that instrument announced that the colonies were assuming “the separate and equal station to which the laws of nature and nature’s God entitle them.” The Declaration states:
“We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator, with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.” Those who signed the Declaration proclaimed: “And for the support of this Declaration, with the firm reliance in the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.”
The Continental Congress opened its sessions, beginning in 1774, with prayer delivered by a clergyman. In 1776, regular chaplains were authorized and subsequently appointed by Congress. In 1778, Congress provided an annual salary for the chaplains. In 1787, Congress adopted the Northwest Ordinance, for the governance of the Northwest Territory. Article 3 proclaimed:
“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged.”
The intent of the First Amendment was to make government neutral among religious sects, not neutral between religion and non-religion. Professor Charles Rice, in his book, “The Supreme Court and Public Prayer,” noted:
“…the public life of the American states was based upon the unapologetic conviction that there is a God who exercises a benevolent providence over the affairs of man. This is not to say that all Americans then recognized God or that there was agreement on all the details of His attributes. But those who assert that the First Amendment was designed to prevent the government from recognizing God and praying His aid, it can rightly be said that they will have to find evidence for their claim elsewhere than in the history of the period prior to 1787.”
In his book, “The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion,” Yale law professor Stephen Carter argues that in recent years religious devotion has been mistakenly trivialized in public life. Because the United States was founded on the concept that our very liberties come from God, any official banning of God from the public square delegitimizes the basis upon which we believe in other people’s rights.
Sociologist Peter Berger notes that India is the most intensely religious country in the world and Sweden the least. He declares that America “is a nation of Indians ruled by an elite of Swedes.” Fortunately, the five member majority on the Supreme Court who upheld public prayer in the case of Town of Greece v. Galloway are not of that number.
As Justice Kennedy declared for the majority:
“As a practice that has long endured, legislative prayer has become part of our heritage, and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable court’ at the opening of the court’s sessions.”
It is unfortunate that four justices found the idea of public prayer, somehow, to be in violation of the First Amendment. This indicates that controversy over the role of religion in our public life will continue. But there is little doubt where the authors of the First Amendment would stand on this question, as the Court’s majority seems to understand very well.