Some Current Thoughts on Legislative Prayers

I just listened to and read the various decisions of Marsh v. Chambers, the earlier legislative prayer case. Sen. Ernie Chambers (Nebraska) is still around, a hero and character to the end.  Past entries covered this ground, including a later case that somewhat clarified what is required. As with the Scarsdale case just addressed, the discussions stand on their own and they are pretty well worded. So, won't totally re-litigate.

The Brennan dissent is well argued overall as is the briefer Stevens' dissent that is more focused on how the prayers (and one chaplain) advances a specific religious faith.  The opinions below are more concerned with funding (district court) and funding particularly of a solitary chaplain of this nature. The Supreme Court majority argues funding along with the rest is allowed by history.  Funding is a primary concern on the Establishment Clause, but so is sectarianism.  If we have some sort of system of the type here, it should be as broad as possible. This is even somewhat noted by Supreme Court precedent.  A practice that blatantly promotes Christianity in a disparaging way is not allowed.  

One thing noted by the opinions at the Supreme Court level is that even at the beginning there was some dissent on use of chaplains, reasons that are flagged by opponents today.  Brennan's discussion at one point notes how religion is in a special way deemed private here.  This flags how there is a "right of privacy" that involves various constitutional provisions.  Anyway, there is (and not just a "we can't be absolute" way) something curious about a government body starting its official proceedings with chaplains/prayers, which are in some fashion going to be somehow sectarian.  

Finally, there is the usual talk in these cases about how such and such is allowed. This can get tiresome, since lines are drawn.  But, not being a Supreme Court justice or something, I can face up to these things and accept that "God Save This Honorable Court" and so forth are not just words said that has lost all religious meaning. Or, some bland way to "sanctify" (or whatever word is used) public hearings.  It is a lingering official means to reaffirm certain deistic (and as a whole often more) messages.  This doesn't mean all is acceptable.  Even Scalia noted something like "In Jesus Christ We Trust" would be problematic.  

(Scalia did this during the oral argument in Lee v. Weisman, which also has an interesting concurring opinion by Souter that not only provides a textual and originalist analysis but also weighs it with precedent.  His discussion includes a good discussion of Thanksgiving Proclamations, also one of those acknowledgments of religion that repeatedly is tossed off as justifying something not really comparable.)

I actually had to write a mock opinion for this case before the fact and at the time thought it would come out 5-4 the other way. To be fair, apparently, Justice Scalia also was upset.  OTOH, if you listened to the oral argument -- something not readily available at the time -- both Kennedy and O'Connor's votes later on are not really surprising, even if Kennedy hesitated during the opinion writing process.) 

But, again, if we are going to allow that sort of thing, we need to take care.  Truly respect the diversity of beliefs out there, including those who might be labeled "secular humanist" or whatever.  If we have "days of prayer" or the like, respect some do not pray and don't just blatantly promote "Judeo-Christian" values or something.  Don't have appeals to "religious liberty" and just mean conservative religions. 

And, maybe even recognize that even if absolutism (or closer to it) is not possible, something might be lost in the process.  Those long law review articles that show that "ceremonial deism" or whatever in actual practice burdens religious liberty has some bite.