Why can't we just vote on whether we pray to Jesus at legislative sessions?

Why can't we just vote on whether we pray to Jesus at legislative sessions?

Why can't we just vote on whether we pray to Jesus at legislative sessions?

The law, lawyers, and the court.
Aug. 4 2011 6:08 PM

Sacred Sessions

Why can't we just vote on whether we pray to Jesus at county board meetings?

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On December 17, 2007, Janet Joyner and Constance Lynn Blackmon decided to attend a meeting of the Forsyth County Board of Commissioners. Like all public Board meetings, the gathering began with an invocation delivered by a local religious leader. And like almost every previous invocation, that prayer closed with the phrase, "For we do make this prayer in Your Son Jesus' name, Amen."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

So begins Judge J. Harvie Wilkinson III, writing in Joyner v. Forsyth County, a 2-1 decision invalidating the Board of Commissioners of Forsyth County, N.C.'s policy of beginning legislative meetings with prayers—more often than not, prayers offered in Jesus' name.

Miami-Dade County Commission Chairman Dennis C. Moss bows his head before a commission meeting in county hall. Click to expand image.
How should county commissions decide whether they can pray before meetings? Miami-Dade County Commission Chairman Dennis C. Moss bows his head before a meeting in 2009.

Concluding last week that the board's policy of inviting local religious leaders to offer sectarian invocations prior to legislative sessions runs afoul of both the Constitution's Establishment Clause and years of Supreme Court precedent, the majority of the three-judge panel of the 4th Circuit Court of Appeals determined that the policy could not stand. Before the federal appeals court arrived at this conclusion, a magistrate judge had also concluded that the prayers "display[ed] a preference for Christianity over other religions by the government" and "affiliate[d] the Board with a specific faith or belief." A federal district judge agreed, finding that the policy violated the Establishment Clause and enjoining the board from continuing the sectarian prayers.

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Cue the furious cries of religious discrimination. This week, four of the seven commissioners on the board indicated that they would vote in favor of appealing last week's decision to the U.S. Supreme Court. That's because, as Ken Klukowski argues in the Washington Examiner, they believe that this case reflects some kind of tyranny of the minority, in which, in Klukowski's telling, "[t]wo non-Christians from the community with a population of approximately 350,000" were granted a judicial " 'heckler's veto,' where one hypersensitive person in a crowd is offended, and makes the whole group conform to the heckler's demands."

It's always fascinating to see Establishment Clause cases get spun in terms of religious persecution of majorities by a bunch of "hypersensitive" crybabies. And how do we always know who's hypersensitive and who's only normal quantities of sensitive? Well, the majority votes on it. And that's what I call "democracy."

As Klukowski suggests, "given that 95 percent of local religious houses identify as Christian, it's not surprising that many of the invocations include specifically Christian language." The record in this case reflects that the 95 percent majority certainly got its money's worth when it came to sectarian legislative prayer. As Judge Wilkinson noted, the ostensibly neutral prayer policy led to the unsurprising result that 26 of the 33 invocations given between May 29, 2007, and Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior, or the Trinity.

The objection to the decision in this case can be paraphrased thusly: You have to be some kind of a religious nut job to feel excluded when 95 percent of the county wants to exclude you.

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Judge Paul Victor Niemeyer, writing in dissent, explains that nonsectarian ecumenical prayer isn't even really prayer in the first place. "In a stated sensitivity to references that might identify the religion practiced by the religious leader, the majority has dared to step in and regulate the language of prayer—the sacred dialogue between humankind and God. Such a decision treats prayer agnostically; reduces it to civil nicety." Possibly the only thing more terrifying than the prospect of a federal court stepping into "a sacred dialogue between humankind and God" is the prospect of a federal court writing that sentence in the first place.

The Christian advocacy group Vision to America, goes even further, noting in a statement that

Article XIX of North Carolina's 1776 Constitution reads, "All men have a natural and unalienable right to worship God according to the dictates of their own consciences." Article XXXII is specifically Christian in stating the following qualifications for public officers in the state: "No person who shall deny the being of God, or the truth of the Protestant religion, or the divine authority of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Their argument appears to be that if North Carolina wants to be a Protestant state, the federal government has no business telling it otherwise. But the suggestion that Judge Wilkinson has here done something surprising or unprecedented is itself rather amazing. In an opinion written as though he were patiently explaining basic civics to a dull fifth-grader, Wilkinson states clearly that the First Amendment requires a careful balancing between the need for religious freedom and the dangers of religious tyranny. He notes that although "it is a historical fact that legislative prayer 'is deeply embedded in the history and tradition of this country,' " it is also the case that "[t]he clearest command of the Establishment Clause" holds that that "one religious denomination cannot be officially preferred over another." React in horror if you like, but the Supreme Court's Establishment Clause jurisprudence is not in doubt on this point.

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It's a paradox that lies at the heart of the First Amendment's two religion clauses: The government cannot establish religion, nor can it bar the free exercise of religion. The courts have thus permitted invocations and solemnizations of legislative sessions, in a 1983 case known as Marsh v. Chambers. But they have also gone out of their way to emphasize that—particularly in the realm of legislative prayer, sectarian worship carries an enormous risk of creating sectarian strife. As Wilkinson explains, "such conflict rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life." How can anyone truly feel welcome in a legislative proceeding that opens with the message that their most sacred, private, and deeply felt beliefs are simply wrong?

It doesn't matter if only 4 percent of the community is expressly excluded by references to a certain deity. It also doesn't matter if only 1 percent of the community feels that way, or even if only two "hypersensitive" non-Christians object. The Bill of Rights is not subject to popular referendum. That's why it's called the Bill of Rights and not, say, American Idol.

It also matters not at all that 72 percent of its elected members or 84 percent of local editorial writers or 95 percent of county residents believe that the Board of Commissioners is or should be a Christian enterprise. The whole point of the Establishment Clause doctrine is that majorities don't get to cram their preferred religion down the throats of nonbelievers—even if they vote to do so. The kinds of nonsectarian, ecumenical prayer Judge Niemeyer scorns as mere "civil niceties" are, in fact, the very delicate mechanism by which a society that is deeply religious has also managed to be deeply tolerant. As the Supreme Court pointed out in a subsequent case, "[t]he legislative prayers involved in Marsh did not violate [the Establishment Clause] because the particular chaplain had 'removed all references to Christ.' " The suggestion that Marsh opened the door to overtly sectarian prayer by popular vote turns that case on its head.

State legislatures are not state churches, and it is dangerous in the extreme to try to nudge them ever closer to that role. In his majority opinion, Judge Wilkinson takes pains to spell out why religious invocations at legislative sessions are doubly risky: "legislative prayer must strive to be nondenominational so long as that is reasonably possible—it should send a signal of welcome rather than exclusion." Respect for both prongs of the religion clauses leads him to conclude that, "Faith is as deeply important as it is deeply personal, and the government should not appear to suggest that some faiths have it wrong and others got it right."

Don't let those who seek to enmesh affairs of church and state tell you that this reading of the Establishment Clause represents a war on religion or a nefarious effort to "censor" religious words in public life. It's merely a reaffirmation of the idea that whenever expressly sectarian religion leaches into public political spaces, division, dissension, and the religious alienation of minorities result. The Framers understood that better than anyone. The Forsyth County Board of Commissioners can certainly keep trying to vote the dissenters, the hyper-sensitive, and the thin-skinned off the island. Happily, it's the dissenters, the hyper-sensitive, and the thin skinned whom the Constitution often most zealously seeks to protect.