Varied Carols: Legislative Prayer in a Pluralist Polity

• Publication year: 2022

40 Creighton L. Rev. 517. VARIED CAROLS: LEGISLATIVE PRAYER IN A PLURALIST POLITY

Creighton Law Review

Vol. 40

ROBERT J. DELAHUNTY(fn*)

Abstract

Although the Supreme Court held in a 1983 decision, Marsh v. Chambers, that the traditional practice of prayers by legislative chaplains did not constitute an Establishment Clause violation, the decision left open whether such prayers could be "sectarian." That open question has been litigated in several recent cases, and a similar controversy has arisen over public prayers by military chaplains. The specific focus of most of these controversies has been whether legislative chaplains could include references to "Jesus" or "Allah" in their prayers. This Article places the controversies in a broader context of thinking about the Establishment Clause by distinguishing four rival conceptions of that Clause. Two of these positions, here called "Enlightenment separationism" and "Evangelical separationism," would prohibit legislative prayer altogether - a view ruled out by Marsh. The two other positions, called the "Religion of the Republic" and the "Pluralist Polity" approaches, follow Marsh in permitting the practice, but differ from each other over the nature of permissible prayers. The former position would permit legislative prayer only in the forms of "ceremonial deism" or of "American civil religion"; the latter permits legislative prayers of any kind, however "sectarian" or "denominational," provided that over time the prayers reflect a sufficient variety of religious voices and perspectives to dispel any appearance that the legislature is favoring any particular form of religious belief. The Article argues that the "Pluralist Polity" position accords better with the tradition of religious liberty in this country by allowing the extraordinary vitality and diversity of the American religious scene to find fuller and freer expression. In support of these conclusions, the Article develops in detail three main arguments: that the purported distinction between "sectarian" and "non-sectarian" prayer is illusory, that the attempt to enforce such a distinction will operate in a discriminatory fashion, and that the approach that favors a "Religion of the Republic" will itself threaten to fall afoul of the Establishment Clause.

The Article then assesses, against the standards of the Pluralist Polity approach, three different models for selecting legislative chaplains - the first involving (as in Marsh) the appointment of a single official chaplain from a particular faith, the second involving the rotation of daily chaplains who are freely selected by individual legislators in their own discretion, and the third involving modest constraints intended to ensure that within reasonable limits all faiths in the political community are eventually invited to provide chaplains. It finds that the last model provides a solution that combines American religious pluralism with the country's tradition of religious liberty to provide a solution that is sound both constitutionally and as public policy.

Prayer by a legislative chaplain before the start of official business does not violate the Establishment Clause. So the Supreme Court held in a 1983 decision, Marsh v. Chambers.(fn1) But while Marsh is settled law,(fn2) the scope of the decision has become increasingly controversial.(fn3) If a legislative chaplain may pray, then he or she will naturally be disposed to draw on the imagery, language, symbolism, or sacred writings of his or her own faith. But if so, is there not a risk that the legislature will be seen to be endorsing such prayer,(fn4) or to have created an illegitimate preference for a particular religion?(fn5) On the other hand, if the legislature itself scripts or censors the chaplain's prayer, does that not risk creating an impermissible governmental orthodoxy? As Justice Hugo Black once wrote, "government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity."(fn6)

Faced with such concerns, some courts and other governmental bodies have concluded that legislative chaplains' prayer, to be constitutional, must be "non-sectarian" - and, in particular, must avoid invoking the name of Jesus.(fn7) Controversies over the contents of public prayers by military chaplains - though raising different issues from legislative chaplains' prayers(fn8) - have resulted (thus far) in similar outcomes.(fn9)

At first sight, this approach seems to avoid both horns of the dilemma sketched above. On the one hand, "non-sectarian" prayer is conceived to be prayer of a kind that can be said or heard by anyone - or at any rate, by virtually anyone from among the vast majority of the American people - without causing offense. Further, precisely because "non-sectarian" prayer purports to transcend the differences between particular sects or denominations, a legislature can allow such prayer without appearing to prefer or endorse any one of them. On the other hand, "non-sectarian" prayer is considered to remain prayer - only prayer that is more inclusive in its reach, and less closely associated with any particular faith, than sectarian prayer. Because it seeks to express only what is common to all - or at least the most dominant - faith traditions, chaplains from different backgrounds should be willing and able to recite "non-sectarian" prayers without damage to their own, more specifically denominational, beliefs. "Non-sectarian" prayer thus appears to offer a way of sustaining the tradition of legislative prayer - and thus of following Marsh - without compromising the value of governmental "neutrality" in matters of religion.(fn10)

OVERVIEW

THREE PROBLEMS WITH MANDATING "NON-SECTARIAN" PRAYER AND A PROPOSED SOLUTION

The central argument of this Article is that the "solution" just outlined is spurious. There are three main reasons for that conclusion: first, the idea of "non-sectarian" prayer is illusory; second, a mandate prescribing that legislative prayer be "non-sectarian" would discriminate against many conscientious clergy of different faiths; and third, such a mandate would itself threaten to cause an Establishment Clause violation. Parts II, III and IV below will develop these arguments in detail.(fn11) Part V will outline a solution that appears to avoid these three problems, to be constitutionally valid, and to have independent merits of its own. The problems and their solution are, in brief, as follows.

1. The illusion of "non-sectarian" prayer

First, the purported distinction between "sectarian" and "non-sectarian" prayer is illusory. Every prayer, by its very nature, reflects and conveys a particular system of beliefs about the nature of ultimate reality and is thus "sectarian." However inclusionary or ecumenical a prayer is intended to be, it necessarily incorporates a particular theological viewpoint or belief, just as a statement in Esperanto remains a statement in a particular language (Esperanto), however artificial and contrived that language might be.

Further, given the "dizzying religious heterogeneity of our Nation,"(fn12) there simply can be no such thing as prayer that expresses a "common denominator" for our society. As Geoffrey Stone wrote almost a quarter century ago, "the very concept of a 'nondenominational prayer' is self-contradictory. There are well over fifty different theistic sects in the United States, each of which has its own tenets regarding the appropriate nature and manner of prayer. Any effort to compose a truly nondenominational prayer must thus produce, at best, a sterile litany virtually devoid of true religious meaning."(fn13) Other scholars writing more recently agree fully with that judgment.(fn14) Both across and within the many faith traditions in the United States, profound and intractable differences exist as to the nature and characteristics of the "Supreme Being or . . . Supreme Reality"(fn15) addressed through prayer. Thus, prayers within each of the three leading monotheistic religions - Judaism, Christianity, and Islam - embody certain conceptions about the nature of God and His dealings with the world that are inconsistent with conceptions of ultimate reality held in other religious traditions.(fn16) Jewish, Christian, and Moslem prayers based on the conception of a unitary and transcendent God reject pantheistic or immanentist conceptions of divinity, such as those found in some forms of Buddhism or Hinduism. Prayers addressed to a personal God who hears human petitions and who intervenes in human affairs will "exclude" the followers of faith traditions that take ultimate reality to be impersonal, or that believe petitionary prayer to be useless.(fn17)

Furthermore, even the attempt to find forms of prayer that could accommodate the three main monotheistic religions alone would be problematic, if not impossible.(fn18) Prayer - even within the limits of monotheism alone - is dense with thought, imagery, and allusions that cannot be neatly parsed out into "sectarian" and "non-sectarian" elements, or decomposed into portions that do or do not "exclude" alternative monotheistic viewpoints. Not surprisingly, Jews pray as Jews, Christians as Christians, Moslems as Moslems. Conceptions of God, His nature and His dealings...