Prayer at government functions-7: Why the ‘history and tradition’ argument is faulty

In the 1983 precedent-setting case of Marsh v. Chambers that found ceremonial prayer at the opening of legislative sessions in Nebraska to be constitutional, one of the three dissenting voices was Justice William J. Brennan, himself a practicing Catholic. He argued strongly against the kind of ad hoc reasoning being advanced by chief justice Warren Burger in speaking for the majority, saying that it was clear that the court was trying to make legislative prayer into a special case purely because it did not want to overturn a long-standing practice.

Although his was a minority opinion, it is illustrative to look at his dissent in some detail because it address the key issues at the heart of the current Greece v. Galloway case and lays out clearly the principled reasoning as to why such prayers are problematic.

The Court makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal “tests” that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer. [My italics-MS] For my purposes, however, I must begin by demonstrating what should be obvious: that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.

He said that unlike in all other political struggles in which the government could be engaged and battle on behalf of one side or another, when it came to matters of religion and the Establishment Clause, strict neutrality was required of the government.

Finally, the principles of separation and neutrality help assure that essentially religious issues, precisely because of their importance and sensitivity, not become the occasion for battle in the political arena. With regard to most issues, the government may be influenced by partisan argument and may act as a partisan itself. In each case, there will be winners and losers in the political battle, and the losers’ most common recourse is the right to dissent and the right to fight the battle again another day. With regard to matters that are essentially religious, however, the Establishment Clause seeks that there should be no political battles, and that no American should at any point feel alienated from his government because that government has declared or acted upon some “official” or “authorized” point of view on a matter of religion.

He quoted the 1968 Epperson v. Arkansas case in support of his claim.

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” [My italics-MS]

He went on that the desire to preserve tradition was not a compelling argument for creating an exemption to the requirement of government neutrality in matters of religion.

With the exception of the few lapses I have already noted, each of which is commendably qualified so as to be limited to the facts of this case, the Court says almost nothing contrary to the above analysis. Instead, it holds that “the practice of opening legislative sessions with prayer has become part of the fabric of our society,” and chooses not to interfere. I sympathize with the Court’s reluctance to strike down a practice so prevalent and so ingrained as legislative prayer. I am, however, unconvinced by the Court’s arguments, and cannot shake my conviction that legislative prayer violates both the letter and the spirit of the Establishment Clause.

He went on to say that even the historical argument that the court was using to justify legislative prayer was flawed.

The Court’s main argument for carving out an exception sustaining legislative prayer is historical. The Court cannot–and does not–purport to find a pattern of “undeviating acceptance,” of legislative prayer. It also disclaims exclusive reliance on the mere longevity of legislative prayer. The Court does, however, point out that, only three days before the First Congress reached agreement on the final wording of the Bill of Rights, it authorized the appointment of paid chaplains for its own proceedings, and the Court argues that in light of this “unique history,” the actions of Congress reveal its intent as to the meaning of the Establishment Clause. I agree that historical practice is “of considerable import in the interpretation of abstract constitutional language”. This is a case, however, in which–absent the Court’s invocation of history–there would be no question that the practice at issue was unconstitutional. And despite the surface appeal of the Court’s argument, there are at least three reasons why specific historical practice should not in this case override that clear constitutional imperative.

First, it is significant that the Court’s historical argument does not rely on the legislative history of the Establishment Clause itself. Indeed, that formal history is profoundly unilluminating on this and most other subjects. Rather, the Court assumes that the Framers of the Establishment Clause would not have themselves authorized a practice that they thought violated the guarantees contained in the Clause. This assumption, however, is questionable. Legislators, influenced by the passions and exigencies of the moment, the pressure of constituents and colleagues, and the press of business, do not always pass sober constitutional judgment on every piece of legislation they enact, and this must be assumed to be as true of the Members of the First Congress as any other. Indeed, the fact that James Madison, who voted for the bill authorizing the payment of the first congressional chaplains, later expressed the view that the practice was unconstitutional, is instructive on precisely this point. Madison’s later views may not have represented so much a change of mind as a change of role, from a Member of Congress engaged in the hurly-burly of legislative activity to a detached observer engaged in unpressured reflection. Since the latter role is precisely the one with which this Court is charged, I am not at all sure that Madison’s later writings should be any less influential in our deliberations than his earlier vote.

Brennan also said that the fact that a specific practice was considered constitutional at one time does not mean that it should be considered constitutional for all time because when it comes to the Constitution (quoting Abington v. Schempp) “our use of the history of their time must limit itself to broad purposes, not specific practices” and “[O]ur religious composition makes us a vastly more diverse people than were our forefathers. . . . In the face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.”

Justice Brennan was one of the clearest thinkers on the Supreme Court and this dissent demonstrates this quality. In the next post, I will look at more of his analysis, dealing with the difference between passive and active invocations of religion.


  1. Reginald Selkirk says

    This is directly relevant to the arguments for Greece v. Galloway, in which it was acknowledged that if the practiced were introduced anew today, it would unquestionably not be allowed. “Tradition” is the only counter-argument they have.

  2. Wylann says

    Reginald, that is very true. I suspect the SCOTUS will try to use tradition as a fallback again, but it will be interesting to see how many other judges might be willing to forego that and do the right thing. It will also be interesting to see if they follow through to the logical conclusion and eliminate the chaplains/prayers at the federal level. (At least in the US congress/senate, they occasionally use non-Xian invocations.)

  3. busterggi says

    Don’t hold your breath waiting for ceremonial prayer to stop voluntaraly even in western culture. Consider the billions of people whose religion is based on human sacrifice, a religion that arose from an older one that had comparatively recently given up human sacrifice for animal sacrifice. Any ceremony that doesn’t demand blood and death is already a major concession from their viewpoint.

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