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Langfan: Sectarian Prayer is Perfectly Constitutional

For many years, Americans have been taught that Jefferson’s words in his letter to the Danbury Baptist Association, describing the objective of the 1st Amendment as “building a wall of separation between Church and State,” should be taken at face value, free of context, free of analysis, and unfortunately, our Supreme Court over the years has done so as well. That phrase was infamously hailed as sacrosanct by Justice Hugo Black in his opinion in the 1947 case of Everson v. Board of Education of Ewing Township, and although he agreed that there was not a violation of the Establishment Clause in that particular case, his words were utilized by future Courts to further manipulate and distort the words and real intentions of the Establishment Clause (EC).

Associate Justice William Rehnquist (later to become Chief Justice), in his dissent in the 1985 case of Wallace v. Jaffree, sought to clarify the nature of Jefferson’s “mistaken metaphor” and the real intention of the EC. The main thrust of his argument is that Jefferson’s words, which were written more than a decade after the passage of the Bill of Rights and merely in a letter of courtesy, should not bear such great legal standing. However, the words of Jefferson’s fellow Virginian President James Madison in 1789, which were said in direct relation to the EC, can surely shed light on its meaning and intention.

Madison stated that the EC’s purpose was that “the civil rights of none shall be abridged on account of religious beliefs or worship, nor shall any national religion be established…” Rehnquist explained that “it seems indisputable from these glimpses of Madison’s thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion. He did not see it as requiring neutrality on the part of the government between religion and irreligion.”

Thus, a violation of the EC can be achieved only with an action that represents an establishment of a state religion—in turn, meaning the substantive violation of civil rights on account of religion. Without such an action, there is no violation.

It is abundantly clear that sectarian prayers which are open to diverse religious groups within the community, but are predominantly led by members of a particular faith, should be permitted in local government meetings, provided there is no intent to favor one faith over another. Aside from the precedent of the Marsh v. Chambers case, which clearly held that not only were prayers allowed before governmental meetings, but that state-sponsored chaplaincy was also constitutional, there is one main reason why this is so: in no way do such prayers constitute an established religion of the state, but merely the beliefs of selected individuals.

For actions to constitute those of a state Church, there must be practical negative ramifications, such as coercion or penalties. In other words, there must be a substantive violation of religious civil rights. Absent any of the aforementioned issues, there is no established state Church.

Critics of prayer, like the petitioners in the most recent case of Town of Greece v. Galloway, argue that certain actions do constitute coercion, such as the prefatory request to rise and bow heads. They argue that the failure to do so would lead to social and political ostracism, given the intimate nature of many of these administrative or legislative meetings.

These claims are preposterous in light of Marsh, as well as their significant misunderstanding of coercion. Regarding the first point (of Marsh):

State Senator Chambers, petitioner in the Marsh case, was surely facing more “coercion” than any ordinary citizen in local governmental meetings can claim. Senator Chambers had to stand there as a member of the State Senate, and failure to do so surely would have raised concerns. Yet, the Court ruled nonetheless that adults should be able to deal with ideas with which they may not agree, and since no significant penalty or ramification was involved, there was no coercion.

Regarding the second point: The requests to stand up and bow heads are not coercive. Standing up is simply a sign of respect. If one does not believe in the words being evoked in a certain prayer, there is no substantive negative ramification. There is no demand to participate. There is no penalty for not participating. All there is here is the simple recitation of words that represent the thoughts and religious character of some of the present citizens. Whether one chooses to agree or disagree with the prayer is his own prerogative. But merely standing, in our society, represents neither participation nor agreement. It is simply an act of respect.

I do acknowledge that the element of coercion is representative of an established religion, and if coercion were to take place, a violation of the EC would as well. However, the fact that members of a particular faith, based on their being the majority in a given locale, predominantly lead prayers does not imply coercion.

It is incumbent upon all of us to return to the originalist reading of our Constitution and understand that the EC is clear in its goal: that government not necessarily be banned from having an interest in religion, but that it never establish a Church. The sectarian prayers in discussion do no such thing.