Here’s a question from one of the letters published in The Fresno Bee today:
How have we gotten to this point that a prayer mentioning Christ is unconstitutional?
The question was prompted by a recent challenge to the Fresno City Council’s practice of opening its meetings with a Christian prayer. But whatever you think about the usefulness or propriety of the challenge, the question above, which represents a view I have heard often, frames the issue only incompletely. And that makes it at least misleading or even dishonest.
Prayers “mentioning Christ” are not unconstitutional.
Since the matter is important and the point is frequently misunderstood, it bears repeating: prayers “mentioning Christ” are not unconstitutional. No court has interpreted the First Amendment of our Constitution to mean that people cannot pray by “mentioning Christ” or any other deity, saint, prophet, ancestor, icon, totem, charm, or toaster oven.
In simple terms, the United States Constitution does one thing: it constitutes our government. That constitution is achieved in the document by:
- identifying the source of the government’s sovereignty,
- stating the purposes of the government,
- establishing our governmental structure,
- investing government agents with authority to act, and
- limiting those actions against certain, safeguarded individual rights.
Our constitutional document is about power, structure, and limits of our government. No matter your personal beliefs, prayers that “mention Christ” do not affect the power, structure, or limits of our government, and no authoritative court, not even the Supreme Court, has ever said otherwise. You are entitled to believe that petitioning God while “mentioning Christ” will cause a particular outcome in the functioning of government, but your belief is not cognizable to judges or anyone else with the power to compel your conduct. By all means, continue believing whatever you like. And I will continue thinking that your belief in the power of intercessory prayer directed to altering the conduct of government officials is both philosophically misplaced and practically ineffective.
One of the individual rights safeguarded by the United States Constitution is your right to free exercise of religion. That means only that the government cannot use its authority to prevent you from ever offering prayers “mentioning Christ” or anything else. In other words, our nation cannot abide laws that would wholly prohibit or criminalize your religious beliefs or their manifestation in your daily life. It does not mean, however, that you are entitled, always and everywhere, in whatever manner, without any interference from the government, to engage in speech or conduct that amounts to a “prayer mentioning Christ,” or that could conceivably be called religious exercise. For example, the government has plenty of authority to prevent you from using your alleged “free exercise” to obstruct its agents in the lawful discharge of their duties: If you were about to be arrested by a police officer, but insisted on taking a detour to your local place of worship to offer a last prayer, I doubt a free exercise claim would overcome a charge of resisting arrest.
In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), two people were denied unemployment compensation on the grounds they were “discharged for work-related ‘misconduct’” after they “were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both [were] members.” Writing for the Court, Justice Scalia observed:
[W]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.
And:
The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the States interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself—contradicts both constitutional tradition and common sense.
In other words, your right to free exercise of your religious beliefs (including your right to offer prayers “mentioning Christ”) is not a ticket to completely unlimited conduct if you can figure out a way to say that your religious beliefs compel it. The government can limit what you do, so long as it’s limiting socially harmful conduct, it limits everyone else in the same way, and it otherwise acts within the constitutional scope of its powers.
Justice Scalia suggests that the alternative would contradict common sense, and I agree. My common sense tells me that if you are not allowed to practice your religion by violating a neutral law (one that does not specifically target your practice) that is generally applicable (everyone else must follow it, too), then you are allowed to practice your religion by not violating neutral laws of general applicability. (As Justice Souter observed in a case brought under the Establishment Clause, “Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, ‘burden’ their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony.” Lee v. Weisman, 505 U.S. 577 (1992), concurring. In other words, omitting prayers from a graduation ceremony does not amount to removing the students’ religious beliefs and practices altogether. Life—and religion—goes on.)
There may be a problem when we consider religions whose ordinary operations, manifested in the “free exercise” of their practitioners, simply cannot abide the parameters of our laws in general (if such a generalization is possible). In other words, if we define the outer limit of social norms through the legal system, by legislation or judicial opinions, then religious groups can only require conduct that falls within those limits, whether the scope of required conduct is narrower than the legally defined field, or coextensive with it. Maybe that is a problem for “free exercise”; maybe “free exercise” means religious groups are allowed to require any conduct they want, no matter whether it overruns the parameters defined by our legal system, and their members can only be stopped by the government when it has a really, really good reason to stop them—what lawyers and judges would call a “compelling interest.” In my view, this “maybe” is the essence of what some people call the “culture wars”: Who gets to define the outer limit of conduct? A government whose sovereignty is derived from all citizens? Or religious groups, each of which includes less than all citizens?
And here we meet the Establishment Clause. “[I]f citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people,” said Justice Kennedy, writing for the Supreme Court in Lee v. Weisman. And in his concurrence to that opinion, Justice Blackmun wrote, “The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.”
Those remarks are pretty high-flown, and they don’t provide any real guidance to people who are trying to predict whether a particular government action violates the Establishment Clause. But they express an underlying sense, perhaps, of why we value (or should value) the separation of religion and government. If we are going to have a government of laws, if we are going to operate under the principle that social norms and rules of conduct should be determined by a body whose participants may include all citizens, no matter their religious beliefs, then acting as though some of those citizens’ views are more important than others—or worse, actually giving them more weight—simply because they are members of a particular religious group, defeats the ideal of fairness, which is one of the fundamental purposes of rule by law.
(Some of the justices that dissented in the Smith case argued that leaving the accommodation of specific religious practices to the legislative process would privilege the majority religions in that process. They suggested that members of those majority religions could dominate the legislature to prevent the accommodation of minority religions. But that seems to me like little more than a cynical admission that the majority religion—which could only be Christianity so far in our history—is already privileged. Which is all the more reason, in my view, to keep religion out of politics. Vote for people who are well-equipped to address the problems at hand, not for people whose religious views match yours.)
Now I’m better equipped to explain what I meant when I said that the question above (“How have we gotten to this point that a prayer mentioning Christ is unconstitutional?”) frames the issue inaccurately. If “prayer mentioning Christ” is not unconstitutional, then what exactly is the constitutional problem with the Fresno City Council, or any other government, having Christian prayers (the kind that “mention Christ”) to open its sessions? In other words, the problem is not just “prayer mentioning Christ,” but the fact that “prayer mentioning Christ” is an official (or de facto official) part of a governing activity.
When Christian prayers are made at the beginning of Fresno City Council sessions, they are not just ordinary prayers by people who are freely exercising their right to hold and express religious beliefs. Those prayers occur in a specific context, with a specific purpose, which is both governmental and religious. The governmental purpose is to bring the actions of the City Council under the auspices of a particular religious concept of the universe—the Christian one—and the religious purpose is to put the imprimatur of the Christian God on the actions of the City Council. All of which sends a clear message: the Fresno City Council acts under the authority of Jesus Christ, and not under the authority of the citizens of Fresno, unless by happy coincidence those citizens are also Christians. This implicates the problem I suggested above: Who should be allowed to legislate conduct? A government that includes everyone, or a religion that includes less than everyone?
The City of Fresno is not a sovereign state (its powers are derived from the State of California), but it does make rules that apply to everyone in the city, whether they are Christians or not—and lots of them are not. If the rules are in fact determined by a system of law, and not by religious principles—and in general the City of Fresno appears to be ruled by law (barring the corrupting effects of money and politics, which unfortunately will never go away)—then why should the governing body of the city act as though religious principles are the source of its rules? Non-Christian citizens can address and serve on the City Council, but what does the practice of opening sessions with Christian prayer say to those non-Christian citizens? I can tell you, as one of them, that the message is quite clear: “If you are known to be a Christian, if you express your ideas in Christian terms, if you make your contributions overtly Christian in nature, then we will take you more seriously than otherwise.” In reality, I doubt that is frequently the case on matters of real importance to the community. But even so, if members of the Council are not favoring Christians or Christianity, then why do they bother having Christian prayers to open each session? Are they hoping to eventually wear down the enthusiasm of non-Christian citizens for civic participation, and find themselves with de facto rule by Christianity?
The constitutional problem is not that someone, somewhere is offering a “prayer mentioning Christ.” The constitutional problem is that a governing body is pretending to act under the auspices not of its constituents, or of rule by law, but under the Christian God, devotion to which is certainly not universal, even in the relatively small City of Fresno.
Personally, I doubt that a change in policy to include “prayers” from people of diverse beliefs will make any real difference to anyone. People who want to believe that our laws are derived from God, rather than popular sovereignty, as our Constitution says, will not be convinced by argument or history. Their stiff-necked opposition to reality is a product of their own inner drives, which probably “find” it convenient to nurse a counterfactual belief, to serve psychological needs that exceed my knowing. Others disagree and argue that changing the words we use and the way we use them will, over time, preclude the possibility of such opposition. I doubt it. Humans have proven relentlessly inventive in their ability to coin new expressions in service of their prejudices.
And, finally, the matter of “prayer.”
Some people see the opposition to “sectarian prayer” or “prayer mentioning Christ” as opposition to “prayer” in general. And I do not doubt that some opponents of legislative prayer would rather we strip our governmental processes of anything that does not bear directly on matters at hand: budgets, expenditures, hiring, firing, rules of conduct, etc. But I say their view of the world is unnecessarily drab and utilitarian, and a tacit denial of how people actually experience the universe.
We live in a transactional world, where labor and resources are shifted around by lawful exchange in hopes of increasing the overall “value” of our economy and the aggregate happiness of our citizens. This takes a lot of work, so there is always a lot of business to do, and I can see why some people would prefer a governmental process that is just a utilitarian device for getting things done. But the transactional quality of life does not overcome the transcendental quality of experience. And by that I mean not that there are supernatural forces at work in our world, but that the universe is far more complicated that our little brains can comprehend: we should not be surprised by transcendental experience, or the sense that our lives and activities are important, not to be abandoned or taken lightly, that powers beyond our comprehension are always on the verge of interfering in our lives.
Emptying the universe of supernatural forces and adopting a scientific outlook does not leave us with a world where everything is explained or even explainable. There are still mysteries everywhere, including the problems of understanding ourselves and our society—like why are some people so intent on believing in things that are both unobserved and nonsensical? Paying heed to those mysteries by ceremonial remarks that might be construed as “prayers”—whether they “mention Christ” or not—can still be, and in my opinion should be, a good way to remind ourselves, especially in the task of governing, that the quantity of the unknown far exceeds what is known.
There are different ways to “pray,” and not all of them involve petitions for knowledge or guidance or any other tangible benefits from an intangible deity. “Prayer” can also include acknowledgements that we wrestle with our lack of knowledge, the absence of guidance, and the ever-present desire for tangible benefits that we still manage to do without. So if the Fresno City Council—or any other governing body—wanted to open each of its sessions with the admission that none of its members will ever know enough to make the best decisions, I would be happy.