In his dissent in Marsh v. Chambers, justice William Brennan reinforced the Supreme Court’s earlier precedents that while there may be situations in which certain kinds of prayers may pass constitutional muster, it should never be the case that the government actually designs the prayers or acts as a censor to determine what prayers are allowed or not allowed. Even chief justice Warren Burger in his majority opinion said that “it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.”
Brennan also argued that there is a big difference between things like mottoes and inscriptions on public building and legislative invocations, in that the former were static expressions while the latter were unpredictable and could change. Even if one were able to set out parameters of what constitutes acceptable prayers, this raises the immediate and obvious problem of how, if the government cannot censor or design prayers or demand the ability to give prior approval, it can prevent prayer givers from going off the reservation, so to speak, and giving a prayer that is blatantly unconstitutional.
In short, once you allow prayer of any kind, however limited in its range, there seems to be no way of enforcing those limitations without the government acting as a censor and this is a question that the current Supreme Court also struggled with during the oral arguments in the Greece v. Galloway case last November.
Brennan pointed out the kinds of problems that would inevitably arise if prayer were allowed and argued that the only way out of this dilemma was to ban such prayers altogether.
Simply put, the Court seems to regard legislative prayer as at most a de minimis violation, somehow unworthy of our attention. I frankly do not know what should be the proper disposition of features of our public life such as “God save the United States and this Honorable Court,” “In God We Trust,” “One Nation Under God,” and the like. I might well adhere to the view expressed in Schempp that such mottos are consistent with the Establishment Clause, not because their import is de minimis, but because they have lost any true religious significance. Legislative invocations, however, are very different.
First of all, as JUSTICE STEVENS’ dissent so effectively highlights, legislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian. I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but to my mind the better way of avoiding that task is by striking down all official legislative invocations. [My italics-MS]
More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate. Prayer is serious business–serious theological business–and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Some religious individuals or groups find it theologically problematic to engage in joint religious exercises predominantly influenced by faiths not their own. Some might object even to the attempt to fashion a “nonsectarian” prayer. Some would find it impossible to participate in any “prayer opportunity,” marked by Trinitarian references. Some would find a prayer not invoking the name of Christ to represent a flawed view of the relationship between human beings and God. Some might find any petitionary prayer to be improper. Some might find any prayer that lacked a petitionary element to be deficient. Some might be troubled by what they consider shallow public prayer, or nonspontaneous prayer, or prayer without adequate spiritual preparation or concentration. Some might, of course, have theological objections to any prayer sponsored by an organ of government. Some might object on theological grounds to the level of political neutrality generally expected of government-sponsored invocational prayer. And some might object on theological grounds to the Court’s requirement, that prayer, even though religious, not be proselytizing. If these problems arose in the context of a religious objection to some otherwise decidedly secular activity, then whatever remedy there is would have to be found in the Free Exercise Clause. But, in this case, we are faced with potential religious objections to an activity at the very center of religious life, and it is simply beyond the competence of government, and inconsistent with our conceptions of liberty, for the State to take upon itself the role of ecclesiastical arbiter. [My italics-MS]
The argument is made occasionally that a strict separation of religion and state robs the Nation of its spiritual identity. I believe quite the contrary. It may be true that individuals cannot be “neutral” on the question of religion. But the judgment of the Establishment Clause is that neutrality by the organs of government on questions of religion is both possible and imperative.
I can think of no better case to be made against allowing prayers at official government functions than the one made by justice Brennan who, incidentally, was a Catholic, just like six of the current justices.