Notes

The opinion page of the Fresno Bee includes a weekly feature called “Meet Our Letter Writers.” Each week they do a profile of a person who writes a lot of letters to the editor. This week the featured letter-writer is someone named Tim Spangler, whose letters often drive me nuts.

The profiles in this feature always include an “Excerpt from recent letter,” which usually typifies that letter-writer’s views. Here is Mr. Spangler’s excerpt:

Once again, the ultra-liberal viewpoint of the “separation of church and state” is supposed to mean you should never dare to even mention Christianity in any public or political venue. This is nonsense and isn’t supported . . . by an accurate reading of the Constitution.

Of course, the first of those two sentences is nonsense and not supported by the Constitution. It is also completely imaginary.

No one seriously suggests that “you should never dare to even mention Christianity in any public or political venue.” In reality, advocates of the separation of church and state object only to the endorsement of Christianity, either explicitly or implicitly, by individuals who are acting within their capacity as agents of the government. As the United States Supreme Court pointed out in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), at page 302, “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.”

Here is a common example to illustrate the problem: Should city council meetings begin with a prayer?

Separation advocates would say no because prayers are religious exercises. They would argue that when prayers are made part of the official agenda of a governmental body such as a city council, that indicates the endorsement of religion by the council. Even when the prayers are offered by people who are not members of the city council, or when they are offered by alternating members of different religions, the practice of making prayer part of the official conduct of the council looks to many people like an endorsement of religion over non-religion. Justice Sandra Day O’Connor explained the principle clearly and succinctly in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668 (1984), at page 688:

Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.

In another case, Lee v. Weisman, 505 U.S. 577 (1992), about whether prayers are an appropriate part of a public school graduation ceremony, Justice David Souter, at pages 629-630, in his concurring opinion took a different approach and noted that since religious believers should not need government support for their religion, conduct that demonstrates such support is best understood as endorsement:

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. They may even organized a privately sponsored baccalaureate if they desire the company of like-minded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the government’s sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of theistic religion.

Although his reasoning is not entirely clear, I read Justice Souter to mean that if people’s religious beliefs need no affirmation by “the machinery of the State,” then such affirmation is gratuitous—that is, unnecessary to carrying out government functions—and consequently “is most reasonably understood as an official endorsement of religion.” In other words, since the affirmation of religious belief by the state is otherwise nonfunctional, it does not pass the infamous “Lemon test,” which requires that government action have a secular purose. (But I don’t have the time to do more thorough legal research, so I could be misinterpreting Souter’s opinion.)

But the United States Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983), at page 792, held that prayers to “invoke Divine guidance on a public body entrusted with making the laws” do not violate the Establishment Clause. In Marsh, the question was whether the Nebraska state legislature violated the Establishment Clause by opening each session with a prayer offered by a state-employed Christian chaplain. The Court based its decision largely on history, pointing out that “[t]he opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” (Marsh, at page 786.) Citing another case, the Court wrote:

It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice . . . is not something to be lightly cast aside.

(Marsh, at page 790.) The Court also pointed out that Congress, in 1789, during the same week, both approved the draft of the First Amendment that went to the states for ratification and authorized the appointment of chaplains to offer prayers at the openings of its sessions.

It can hardly be thought that . . . they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable

(Marsh, at page 790.)Relying on the Court’s opinion in Marsh, lower courts have held that “nonsectarian” prayers offered at city council meetings do not violate the Establishment Clause.

In my opinion, Marsh is not persuasive, or at least out of date. If you want to take a historical view, you can also find the approval of slavery and the limitation of civil rights to white men in the framing of the Constitution. But we have abandoned those ideas. Furthermore, if we were to follow Justice O’Connor’s reasoning in Lynch, decided a year after Marsh, and Justice Souter’s reasoning in Lee, decided nine years after Marsh, and applied those principles equally to legislative sessions and city council meetings, then even the historically traditional offering of “nonsectarian” prayers in those contexts should be a violation of the Establishment Clause.

Even “nonsectarian” prayers send a message that religious believers of all sects are favored more highly than nonbelievers. And since religious believers do not need the machinery of the state to affirm their beliefs and those prayers, offered in search of “Divine guidance,” appear to have no secular purpose, they are most reasonably understood as endorsing the distinctly religious possibility that there is such a thing as “Divine guidance.”

Returning to my original question, though, on the other side of the problem, what if a citizen bringing an issue before the city council speaks from his or her religious conviction and wants to express that while addressing the council? Should that be a problem?

Most separation advocates would see no problem there because the citizen is not acting in any capacity as an agent of government. Instead, the citizen has a right under the Free Exercise Clause to express his or her beliefs.

A trickier question is whether a member of the city council, while discussing a matter before the council, takes up an individual position based on his or her religious conviction and wants to express that during the discussion. Should the Free Exercise Clause also protect that expression? Some separation advocates might object, but in my opinion, there should be no problem.

Since the question there is whether the councilor speaks in an individual capacity or a governmental capacity, it is useful to note that if a city council operates by voting after discussing, the only expression in a government capacity should be the vote or decree itself. On the other hand, if the other councilors find the argument of religiously motivated councilor persuasive and it is clear that they vote together on the basis of shared religious belief, then there could be a violation of the Establishment Clause.

Although issues with the Establishment Clause are not exactly simple, it should be easy to see that Mr. Spangler is flat wrong to assert that religious expression “in any public or political venue” is “never” acceptable to advocates of the separation of church and state.

Like many people who are unfamiliar with the law, Mr. Spangler fails to understand the difference between speech made in an individual capacity and speech made in a governmental capacity. Separation advocates do not suggest that religious expression in an individual capacity should be limited according to its content in public or political venues. There may be constitutionally valid limitations of religious speech in those places that are based on “time, place, and manner”—such as rules that citizens only speak in city council meetings when recognized to do so—but no one really thinks that citizens should be barred from allowing their personal religious convictions from informing the opinions they bring to the public discourse.

The tricky issues arise when citizens are serving the public in a governmental role, like being a city council member. In those situations, it is easy to see how religious people who believe that most others believe as they do, or that their beliefs are favored by history, could have a hard time separating their roles as citizens from their roles as public servants. That does not make it acceptable for them to avoid the separation, though.

People who work as public servants need to recognize that members of the public should not feel that the government favors or disfavors anyone simply because they have or don’t have particular religious beliefs. Everyone must pay taxes. Everyone needs public services like police protection, sanitation, and transit. Everyone should have equal access to the instruments of government. In the judicial branch of our government, we expect judges to avoid even the appearance of bias. Why should we expect anything less from the legislative or executive branches?