When the framers of the Constitution added the Bill of Rights, they began first of all by talking about freedom of religion. As much as this was, and still is, a shining moment in the history of humankind, it should also be acknowledged that there have been many concerns over the years related to the interpretation of these rights. To quote it directly, here is what the so-called “establishment clause” actually says: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”
In fact, these two short statements often seem to be in a kind of opposition to each other, and have almost from the beginning been the subject of discussion, argumentation, contention, division, and a myriad of claims related to the right way and the wrong way of living and behaving. What does it mean for the government to establish a religion? In one sense, this is clear. It cannot require all citizens to be members of and adhere to any one religious organization. This was added in to the Bill of Rights as an obvious reaction to laws that the framers of the Constitution, or their recent ancestors, had lived under, which forced all Englishmen of the time to belong to the Church of England. The colonies were founded, for the most part anyway, by people who had fled England specifically in order to be able to practice religions other than the established one. To be sure, these other religions were mainly Protestant Christian in nature, Presbyterian, Methodist, and of course Puritanism. The likelihood is very small that it ever occurred to the founders that this amendment to the Constitution might eventually also apply to Muslims, Jews, Buddhists, Hindus, Sikhs, Taoists, and even to Catholics, to say nothing of Wiccans or, more obliquely maybe, to those who believed in no God and no religion at all. And yet, the modern interpretation of the 1st Amendment does apply to all of the above.
Or does it? The basic question always seems to be, where do you fairly and impartially strike a balance when it comes to restricting government from setting up an official religion? And where is the line between the free ability of the people, perhaps even a majority of people, who wish to see aspects of their religion infused into the public life of the polis, and those opposed to these religious views and values being part of the law of the land?
The Supreme Court has grappled over and over with this tug of war, sometimes coming down on one side, sometimes on the other. The latest push-pull came just a few days ago, when a majority five members of the court voted to allow public prayers – prayers that were, in fact, predominately Christian in nature – to be said before a town meeting. Two citizens, a Jew and an atheist, had brought suit against the town council of Greece, New York, accusing them of repeatedly allowing prayers to open their meeting. Many of these prayers directly referenced Christianity, speaking of Jesus, his resurrection, and of other dogmas clearly associated with Christianity.
At issue is the comfort of non-Christian citizens, who may have business before their town council. Does a Jewish citizen of the town of Greece, for example, or an atheist, or a Buddhist (if there are any) feel all right about sitting through a prayer, any prayer, but especially one that ends with the phrase “in Jesus’ name,” all the while awaiting to conduct business before a government council?
In fact, let us not forget that the 1st Amendment of the Constitution does not stop with the declaration related to religious freedom. It goes on to list several other rights, as well. It may even be worthwhile to quote the entire amendment here:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition Government for a redress of grievances.”
In other words, the 1st Amendment goes on to also speak of other freedoms essential to the health of a democracy, namely, that of speech, of the press, of assembly, and of petitioning the government when things go wrong. Does a prayer, and specifically a Christian prayer, at the beginning of a town council meeting abridge any of these other freedoms? Arguably, it may well, particularly in regard to the last one listed, namely, the right of the people to petition the government (i.e., the town council, in this case) for a redress of grievances. And is this, along with all the other rights, not also a co-equal partner with freedom of religion, as delineated in the 1st Amendment?
According to Justice Kennedy, who wrote for the majority, the prayers were “merely ceremonial, and meant to signal the solemnity of the occasion.” Indeed, even the Obama Administration came down on the side of “protecting freedom of religion” in this case. And while it is true that most governmental bodies in this country do allow some sort of prayer before opening for business, more commonly these prayers are at very least entirely non-sectarian in nature, addressing a kind of generic “God,” without the addition of a specific name, and certainly not referencing “the saving sacrifice of Jesus Christ on the cross,” as one such prayer before the Greece, N. Y. town council meeting did.
For my money, I think that Thomas Jefferson was right when he said that there ought to be a wall of separation between church and state. And if solemnity before a public meeting is required, fine. Let us open with a moment of silence, during which time each person can address their own vision of God in their own heart, or not at all, if that is their individual wish. What, in fact, could be more solemn, less sectarian, less intrusive, and at the same time more “religious,” than silence?
Kennedy did go on to say that such prayers ought not to denigrate other religions, or to proselytize, or “to threaten damnation.” Really? Is this the bar to which we should be held: let us not “threaten” Jews or Buddhists or Hindus or Muslims, or atheists before town council meetings held here in these United States? Well, that surely would be good.
But it is not enough. The Supreme Court has gone too far this time, and its conservative majority has upset the delicate balance that must be maintained among the various rights enumerated within the 1st Amendment. All of those rights need to be taken into consideration, and those of Christians to say their prayers ought not to take precedence. That, after all, is the essence of what it means to live a pluralistic society. In a balanced way, this is what the 1st Amendment should protect, and this is what we ought to expect of a fair and even-minded judiciary. Unfortunately, as has happened far too often of late, this Court has failed to do its job, and as such has done a great disservice not only to the people – all the people, Christians and non-Christians alike – but also even to its own constitutional mandate.