We noted yesterday the Supreme Court’s ruling in a case allowing for sectarian prayer at town council meetings. In a 5-4 decision, the court narrowly reversed a lower court ruling that prohibited the use of Christian-specific prayer on the grounds it “conveyed the message that [the town of] Greece was endorsing Christianity.”
Ultimately, the Supreme Court held legislative prayer in the context of an invocation prior to the conducting of regular legislative business did not violate the Establishment Clause of the first amendment. It did so by drawing on several cases form the past that essentially concluded the exact same thing, citing hundreds years of the existence of prayer in legislative bodies throughout the nation.
More persuasive than this “tradition” argument, though possibly more constitutionally problematic in the long run, was the court’s recognition of what would occur as a result of courts inquiring into the specific content of a prayer. [Emphasis Added]
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the court that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact… Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.
Because the plaintiffs in this case only wanted the Christian-specific aspect of the prayer removed from the town council, the above line of reasoning was invoked to buoy the more basic “tradition” argument also employed by the majority.
But what about a constitutional challenge seeking a ban of prayer altogether? That would alleviate the need to inquire into the content of the prayer, thus freeing courts and governments from entangling themselves in the process of picking and choosing deities and faiths to pray to.
Outside the courts, people are already gravitating towards this method of religious restriction in the public sphere. As reported by the Daily Caller, one East Carolina University Professor recently instructed his students specifically not to mention God in their graduation ceremony speeches.
He ordered students to “provide me something written in the third person” in a personal statement that discusses future plans or “thanks someone.”
However, Hvastkovs wrote:
You can’t thank God. I’m sorry about this — and I don’t want to have to outline the reasons why.
“Keep it brief,” the assistant professor also told students. “I didn’t give you a real word limit,” Hvastkovs wrote. Then, in the very next sentence, he demanded “at max 35 words.”
In a later interview with Campus Reform, Hvastkovs explained his belief that entirely too many students expressed gratitude to God during last year’s departmental graduation ceremony at ECU.
“It’s not a religious ceremony,” he said. “It’s purely educational.”
The all out “God-ban,” it seems, was not very popular.
When officials at the Greenville, N.C. school learned about Hvastkovs’s policy banning God in personal statements, they in turn banned Hvastkovs’s policy.
Marilyn Sheerer, the provost at ECU, sent an email to affected students directing them to ignore the professors religious embargo.
“Religious references of any type will not be restricted,” Sheerer’s email said.
ECU’s executive director of communication, Mary Schulken, also weighed in on students’ constitutional rights.
“The First Amendment allows them to thank God, to thank any force or any individual that they so desire…”
Despite the provost’s very reasonable position, the situation created by the East Carolina professor could be a foreshadowing of larger constitutional challenges still to come. While any reasonable reading of the first amendment should dictate that prayer is constitutionally permissible in legislative bodies, an all out ban will likely continue to be sought by a small but vocal minority. And, as evidenced by the narrow margin by which the court came down yesterday, a slight change in the makeup of the court could tip the scales the other way.
Given the divided nature of the court on this issue, relying solely on the tradition aspect of prayer in public forums (i.e. town council meetings, Congress, etc.) may not be enough when faced with a challenge to ban prayer entirely, because it cannot be buoyed by the “government entanglement” argument used by the majority yesterday. It must be stressed that the five justices ruling in favor of the Town of Greece did not rely solely on “tradition for tradition’s sake” in crafting their main argument.
Indeed, the tradition informs the text. Thus, yesterday’s ruling should square with both constitutional originalists and constitutional textualists. The Supreme Court is not saying that the American people have been engaging in unconstitutional behavior for so long, that it is now constitutional “because tradition.” Rather, the fact that prayers have occurred in legislative bodies since the inception of the Republic is evidence in and of itself that the text of the Constitution was never meant to preclude such activities.
I think the majority does a decent job conveying this overall theme, but I don’t think it is translated very well through the media to the American people.
The four dissenting justices have strained the logical bounds of what the Establishment Clause can bear, but don’t expect that to halt continuing generalized constitutional challenges to religion in the public sphere.
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