Legislative Prayers and Judicial Sins: How Not to Think About Constitutional Foundings

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1 Legislative Prayers and Judicial Sins: How Not to Think About Constitutional Foundings Jamin Raskin 1 American University Washington College of Law United States Marsh v. Chambers: Using History to Evade Doctrine In 1983, the U.S. Supreme Court in Marsh v. Chambers upheld the Nebraska legislature s practice of opening its daily legislative sessions with religious prayers performed by a chaplain who had been put on the state payroll for this purpose. In arriving at its decision, the Supreme Court did not interpret and apply general Establishment Clause principles but simply found that the practice is legitimized by the history of religious practices inside our legislative bodies, especially the first Congress of the United States. Writing for the majority, Chief Justice Burger emphasized that the first Congress paid chaplains to provide invocations even as the body was preparing to adopt the First Amendment with its Establishment Clause. He wrote: On Sept. 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly the men who wrote the First Amendment Religion Clause did not view legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. 2 Framers-as-Legislators, Framers-as-Framers But this mode of constitutional reasoning is defective and dangerous. It confuses what the first Members of Congress appear to us to have thought about hypothetical potential constitutional problems as surmised from their own short-term legislative actions with what they actually did as sovereign law-givers participating in the writing of the Constitution. The distinction between Framers-as-legislators and Framers-as-Framers is crucial for constitutional democracies to maintain if the dynamics of church-state separation--and human rights generally--are to prevail in the long haul over the perfectly predictable political habits of accommodating powerful social interests in the course of legislative action. Every constitutional democracy has a founding constitutional generation. Every founding constitutional generation is also engaged in the normal push-and-pull of legislative politics at the same time that it is developing enduring constitutional language and principles to define the character and boundaries of governmental action in the future. 1 Professor of Law, American University Washington College of Law, Maryland State Senator U.S. 783, 788 (1983).

2 These two roles must be kept analytically distinct when courts come to analyze the meaning of constitutional language. The dangers of conflating them are plain when we examine the multiple fallacies in Chief Justice Burger s analysis. First, he reasons that, because Congress reached consensus on First Amendment language only three days after the appointment of paid chaplains, then Clearly the men who wrote the First Amendment Religion Clause did not view legislative chaplains and opening prayers as a violation of that Amendment... This is a non-sequitur. When they voted as legislators on the appointment of paid chaplains, the later authors of the Establishment Clause could not have had a position one way or the other on the question because the Establishment Clause did not exist when they considered the issue. But even had they voted on this legislative issue after voting on the First Amendment, their treatment of it would be essentially irrelevant for interpreting the First Amendment because the meaning of constitutional commands cannot be altered by later legislative enactments that conflict with them. On the contrary, the whole point of judicial review as expressed in Marbury v. Madison is that the Constitution controls hostile legislative enactments rather than vice versa. Votes by the first Congress on issues that may end up testing constitutional boundaries cannot illuminate the underlying meaning of the contested constitutional language. After all, a legislator voting on normal legislation is engaged in a wholly different process than he or she is when adopting constitutional language. A legislator who will commit carefully and passionately to abstract and general constitutional principles as a Framer may depart from them as a representative in the thick of considering a political problem whose constitutional meanings may be murky and whose ultimate validity can be safely kicked over to the judicial branch. This is a point that Justice William Brennan made powerfully in dissent in Marsh: Legislators, influenced by the passions and exigencies of the moment, the pressure of constituents and colleagues, and the press of business, do not always pass sober constitutional judgment on every piece of legislation they enact, and this must be assumed to be as true of the Members of the First Congress as any other. 3 In other words, a Member of the first Congress who is developing a constitutional framework for continuing generations of the whole nation has a completely different mindset (and is engaged in a completely different project) than he or she has (and is engaged in) when simply representing his or her district constituents in a legislative conflict. Thus, it is wholly plausible that a gentleman who, as a Framer, voted for the Establishment Clause could, as a district representative, vote for daily legislative prayers by state-compensated chaplains, even if the practice is unconstitutional and he believes it to be so. Indeed, the fact that he understands it 3 Id. at 19.

3 to be likely unconstitutional may be the very reason that he feels safe in voting for a popular but otherwise objectionable practice; he may say to himself, this is a close constitutional call but if it is indeed unconstitutional, the courts will strike it down and I need not do so. But we actually need not deal with this as a hypothetical matter. Justice Brennan points out in dissent in Marsh that James Madison, as a Congressman, voted for the bill authorizing compensation for the first congressional chaplains but later expressed the view that the practice was unconstitutional. 4 In his Detached Memoranda, Madison wrote very much in the voice of a Framer concerned for the separation of church and state and preservation of constitutional liberty: The Constitution of the U.S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does this not involve the principle of a national establishment... 5 The point is not that Madison s dispassionate views expressed after the fact control the meaning of the First Amendment (surely they do not), but rather that the apparent implications of his political position on legislative prayers in the heat of battle certainly cannot control the meaning of the First Amendment either. Confusing Subsequent Practice with Original Beliefs and Original Beliefs with Constitutional Meaning The other non-sequitur in the majority s position pervades this odd sentence: Clearly the men who wrote the First Amendment Religion Clause did not view legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. 6 Of course, the unbroken practice of Congress after it met in its first session sheds no light on how the Framers themselves viewed the constitutionality of the practice, much less what really matters: the actual constitutionality of the practice itself. Here we reach the true danger of the majority s mode of reasoning. It will often be the case that people acting as constitutional framers will be willing and brave enough to inscribe categorical principles into their constitutions that end up destabilizing illiberal or repressive social arrangements like church establishments or racial segregation, to choose two prominent examples. But the very same people who act as liberal constitutional patriots may be unwilling to summon up the will as ordinary legislators to break specifically from such an illiberal or 4 Id. 5 Madison s Detached Memoranda, William and Mary Quarterly, U.S. 783, 788 (1983).

4 repressive practice. The ultimate meaning of constitutional principles may require too much courage to translate immediately into a specific statute. If we take the case of racial segregation, this again seems perfectly obvious. When Congress voted to add the Fourteenth Amendment and its Equal Protection Clause to the Constitution, Congressional policy required the galleries in both the House and Senate to be racially segregated. And, as Justice Brennan observed in dissent, Congress reaffirmed its racial segregation of the public schools in the District of Columbia just one week after it voted for the Fourteenth Amendment. Thus, the logic of the majority s position in Marsh would dictate that these explicit legislative positions in apparent support of segregation control interpretation of the meaning of the Fourteenth Amendment. If so, we never would have had Brown v. Board of Education and the Supreme Court toppling our segregation laws. Given the political difficulty of confronting powerful social forces like churches and institutional racism, the Marsh reasoning is a way to freeze constitutional meaning at the point of ordinary legislative equilibrium when relevant constitutional language was adopted. But this undermines the promise of constitutional politics, which is to lift up social aspiration and destabilize illiberal and repressive arrangements. A Real Constitutional Analysis of Legislative Prayer If we subject the practice of legislative prayer not to an historical treatment but a true constitutional analysis, it clearly violates the Establishment Clause. The leading test in the U.S. is found in Lemon v. Kurzman, 7 which held that laws must have a primarily secular purpose, a primarily secular effect and not excessively entangle church and state. Obviously, conducting organized prayers in legislative session has an overridingly religious purpose, an overwhelmingly religious effect and the certainty of deeply entangling church and state-- beginning with the hotly contested issue of which religious leaders are invited to be chaplain or guest speaker and what rules are to govern the content of their prayers. Indeed, the unconstitutional character of legislative prayer is a conclusion clearly compelled by the Supreme Court s invalidation in Engel v. Vitale 8 of organized prayer in public school classrooms more than 45 years ago. As the Court put it there, it is no part of the business of government to originate and administer religious prayer. This is a conclusion that the Ontario Court of Appeal also reached on September 24, 2008 when it declared unconstitutional the practice of opening local council meetings with the Lord s Prayer. The Paradoxes and Ambiguities of Current Law The U.S. Supreme Court s tolerance of legislative prayer has opened up a Pandora s box of questions that do not admit of clear answers given the unprincipled starting point of the U.S. 602 (1971) U.S. 421 (1962).

5 Marsh decision. Can the Members of the Town Council of Great Falls, South Carolina invoke the name not just of God but of Jesus Christ in the prayer invocation that opens their meetings? The Fourth Circuit Court of Appeals said that this sectarian reference crossed the line. 9 Does the Chesterfield County Board of Supervisors have the power to exclude a witch leader, who practices Wicca and belongs to the Broom Riders Association, from a list of religious ministers who volunteer to pray at open its meetings or must it be open to all representatives of different faiths? The Fourth Circuit Court of Appeals said that Chesterfield can exclude the witch. 10 And so on. From the standpoint of a legislator who serves in a body that conducts legislative prayers every legislative day, the practice reveals all of the vices that led our constitutional Framers to adopt the Establishment Clause. It allows governmental actors to dress themselves up in religious garb when making public decision, often lending a kind of moral halo to controversial and arguably immoral policies. Conversely, it creates a thick aura of official sponsorship and endorsement to churches, religious dogma and references to the divine. It contributes to a symbolic fusion of church and state in the eyes of the public. It immerses legislators in conflict and controversy over sectarian issues, such as who shall be the official chaplain? or should we allow Hindus to lead us in prayer? or will we allow direct references to Jesus Christ? or who gets to lead the prayer when we discuss capital punishment or abortion? It compromises the ability of legislators to resist the political demands and positions of favored religious actors. At the same time, I have found that legislative prayer does sometimes set a moral tone to the legislative context that is usually missing in the normal push-and-pull of political debate. It can sometimes have a cathartic, uplifting or humorous effect on discussion. Yet, these benefits could presumably be achieved by having different members or their guests launch the session with thoughts for the day, which could include meditations on Thomas Jefferson, Tom Paine, Shakespeare and other secular figures as well as any religious figure, tradition or story. At that point the little bully pulpit of the morning invocation would become a micro-public forum in which the speaker could speak of whatever he or she wanted, whether public or private, sacred or profane. This change would parallel the move in public schools from inescapably sectarian religious prayers to non-sectarian moments of silence in which everyone can think his or her own thoughts. * * * * * * * 9 Wynne v. Town of Great Falls, 376 F.3d 292, 298 (2004). 10 Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (2005).