Back in 1983, the US Supreme Court ruled in the case Marsh v. Chambers that the practice of ceremonial opening prayers of the Nebraska state legislature was constitutional. In his strong and cogently argued dissent, justice William Brennan warned that allowing any ceremonial prayer at all, whatever the constraints imposed, would result in the Supreme Court getting involved in endless disputations about what kind of prayer and settings should be allowable and what should be disallowed.
[A]ny 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.
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.
If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction. But it would also, I am convinced, have invigorated both the “spirit of religion” and the “spirit of freedom.”
His prediction that the court would get repeatedly entangled with this question has come true as the debate about what constitutes legitimate, allowable prayer continues to this day.
In the 2014 case Greece and v Galloway, the court was asked to adjudicate a town council’s prayer practice and ruled that such prayers were acceptable if the policy for choosing prayer givers was not sectarian. Now the Fourth Circuit Court of Appeals has ruled 10-5 that a North Carolina county’s prayer policy is unconstitutional because it gave preferential treatment to Christianity, and that will also likely be appealed.
Three residents had challenged the Rowan County Board of Commissioners’ practice of opening meetings with prayers composed by members, and asking those in attendance to stand and pray together.
Ninety-seven percent of 143 prayers in a recent 5-1/2-year period were Christian.
Writing for Friday’s majority, Circuit Judge J. Harvie Wilkinson said it was not “inherently unconstitutional” for lawmakers to deliver invocations, but Rowan County violated the First Amendment’s Establishment Clause by focusing on a single, preferred faith.
In another case, another petition has reached the court about a local school board’s opening ceremonial prayer. I wrote about this latter case back in March, after the Fifth Circuit Court of Appeals ruled that the Greece precedent meant that such prayers should be allowed.
If Brennan’s opinion had been the majority, then all prayers would be abolished and we would not have these endless debates, splitting hairs about what prayers are allowed. But people are so awed by professions of public religiosity that they cannot bring themselves to confine it to where it properly belongs, which is in the private sphere.