What does history tell us about legislative prayer?

I had the privilege of attending the November 6 arguments in Town of Greece v. Galloway. It was a lively argument. But the key question, it seems, came just a few minutes into the presentation, when Justice Kennedy asked a question about the value of history.

The case was about prayer before legislative meetings, which was affirmed in 1983’s Marsh v. Chambers. Marsh held that such prayers had been arranged by the first Congress while it framed the First Amendment, and that such long history heavily prevented it from being a violation of the Establishment Clause.

Perhaps five minutes into the argument in Town of Greece, Justice Kennedy rather pointedly asked: “[w]ell, is it — is it simply history that makes — there’s no rational explanation? It’s just a historical aberration?” Thom Hungar, counsel for the Town, correctly and succinctly answered Justice Kennedy’s question about the differences between legislatures and courts.

But that question, from Justice Kennedy, so soon after Windsor, sounded more like Equal Protection clause analysis, not traditional Establishment Clause analysis The record shows the parties in Greece have disclaimed an equal protection case. There was not intended or actual discrimination. However, Justices Kennedy, Kagan and Ginsburg all expressed concern about whether these prayers were shibboleths, a way of identifying religious outsiders from insiders.

Professor Laycock, the lawyer for the complaining citizens, encouraged this idea. “… [B]efore you stand up to ask for relief from a governing body, you don’t want to offend that body. Adults are subject to coercion here. And — and no competent attorney would tell his client, it doesn’t matter whether you visibly dissent from the prayer or not. You try to have your client make a good impression.”

Hold aside, a moment, whether it’s coercive to ask a crowd to bow their heads and close their eyes during an individual’s prayer. Among most Christians I know, that’s a device for preventing embarrassment. The true believers aren’t supposed to be looking around to know who’s looking around.

But the argument from history advanced by the Town is not that there is a historical excuse for a discriminatory practice. The Petitioners admitted that there was no evidence of discrimination, in intent or fact. They don’t claim any personal harm, other than an Establishment Clause violation. History isn’t asked to justify distinctions line drawing, as the argument from history was asked to do in Windsor.

Rather, 200+ years of history give notice to reasonable adult participants in American life that the invocation isn’t a governmental prayer.

The Lemon test, the longstanding test for Establishment Clause violations, asks whether a reasonable observer might conclude that a particular activity is a government endorsement of religion. Americans have long concluded that a traditional invocation doesn’t look like an establishment to a reasonable observer. Invocations acknowledge our pluralism and humanity. Just before we debate each other, criticize each others’ positions, and risk extraordinary passion and hurt feelings, we pause to remember that there are some ultimate truths that government can’t decide for us — or take away.

We do that by asking a fellow citizen to speak in a way that Government does not. Government cannot tell us to find truth in Christianity or Judaism or humanism or atheism or naturalism. It cannot settle ultimate questions. Ministers of many faiths professionally seek truth and wisdom outside government, so we often ask those community symbols of un-government to make an invocation. But such prayers aren’t the official message of the government, or a “town prayer.” It’s the speaker’s invocation. Commonly, the speaker uses that time to ask Divinity to turn the government from folly and evil. Listeners may judge if the words are true, agreeable or effective — just like we do in the debates that come after. But we remind ourselves of government’s limits by letting a citizen invoke extra-governmental Wisdom and Peace in the best way he or she can.

Our newest citizens, or those unfamiliar with such meetings, might ask how we know the prayers aren’t an establishment of religion.

We know because of the history. In religious matters, nearly every American views himself or herself as part of a religious minority. Catholics are a minority, and Protestants widely vary on doctrine; it is a mistake to assume a group of “Christians” are silently agreeing with invocations given by another Christian. And Professor Laycock seemed to far overstate the agreement among the Founding Fathers on religion. He suggested that the chaplain of the first Congress only prayed generally acceptable Christian prayers.

In fact we know the Founding Fathers, even while broadly Protestant, did not agree on religion. The debate in the first Congress was about whether men of such diverse opinion could ask a chaplain to pray. And several of them argued that there was not enough agreement to go forward. Sam Adams finally stood up to say that he was no bigot, and “could listen to the prayer from a gentleman of Piety and Virtue, who was at the same time a friend to his country.” You’ll note that Adams said he could listen — not “agree” or “adopt,” or “join.” A chaplain was hired that day, and Adams’ view of legislative prayer has ruled ever since. Even where we don’t agree, it is useful to listen respectfully to another person’s invocation.

Thus, the broad history of legislative invocation shows that worries about establishment (which seems to surface every few decades) are largely unfounded. And true to America, in Town of Greece, the petitioners say they’ve not been singled out or mistreated in any appreciable way. Indeed, I suspect that most Americans would roundly condemn any real attempt to single out citizens through an invocation.

Rather, Americans of all kinds respect different ideas about ultimate truth. Like Sam Adams, we’re no bigots, and can listen to the prayers of another friend of this Country, no matter his or her religion (or non-religion). We pause to let one of us remind us that America’s government can’t decide some things, and that we must listen to each other with respect. The first Congress, a House special committee in the middle of the 19th century, and the Marsh court all saw that Americans don’t equate invocations with a government message or government religion. And because such prayers have so long been recognized as private speech, we do not limit, burden, or restrain them.

So while the petitioners in Greece may be only the latest to ask, “how can ministers pray a government prayer,” History yet again should answer: “they can’t — but these invocations are not a government prayer.” Invocations for government, but not by government, prior to open legislative sessions are Constitutionally-permissible private speech. They deserve full First Amendment protection.