Inside the First Amendment
By Charles C. Haynes
First Amendment Center senior scholar
Hashmel Turner of Fredericksburg, Va., wears two hats: City Council member and part-time pastor of the First Baptist Church of Love.
Not surprisingly, Rev. Turner wants to pray in the name of Jesus Christ — including when it’s his turn to offer the opening prayer at council sessions.
But on July 23, Turner lost the latest round in his battle to invoke Jesus when the 4th U.S. Circuit Court of Appeals upheld the Fredericksburg City Council’s policy requiring that prayers at meetings be nondenominational.
In an opinion written by retired Supreme Court Justice Sandra Day O’Connor (asked to take part in the case as a visiting judge), the court ruled that the prayers at issue are “government speech” and therefore the prayer policy does not violate Turner’s free speech or free exercise of religion.
Welcome to the confusing, contradictory and downright silly world of government prayers.
Like many other communities, Fredericksburg is divided about the practice of invocations at council meetings. The current dispute began in 2005 when the council changed its policy of allowing sectarian prayers to avoid a lawsuit by the American Civil Liberties Union.
The new policy, in turn, provoked a lawsuit from Councilman Turner. When it comes to state prayers, government officials are often sued if they do and sued if they don’t.
The Fredericksburg prayer dilemma traces back to Marsh v. Chambers, a 1983 U.S. Supreme Court decision upholding the constitutionality of legislative prayers — so long as such prayers don’t advance a particular religion. In Marsh, the high court wants to have it both ways: Keep the longstanding tradition of opening legislative sessions with prayer (dating to the nation’s founding) but at the same time prohibit government prayers that proselytize or endorse one faith over another.
But here’s the rub: To-whom-it-may-concern prayers strike many people as a very bad idea. For Rev. Turner and some other religious Americans, generic prayers aren’t real prayers. And for other believers and nonbelievers, any state prayer violates religious freedom. As religious-liberty attorney Oliver Thomas puts it, “Nonsectarian prayers are like Grape Nuts — they’re neither.”
I’m in the camp that sees state prayers — and state religion in general — as antithetical to authentic faith. Consider the infamous “plastic reindeer test” crafted by the Supreme Court in cases involving holiday displays. Governments, it seems, may include a crèche in the official display, as long as it is surrounded by enough reindeer, Santa, Frosty and other seasonal paraphernalia to render the baby Jesus a secular symbol.
Or consider the use of “God” in the Pledge of Allegiance and on our currency. Various Supreme Court justices have opined over the years that such references to deity don’t violate the First Amendment because the expressions have been drained of their religious meaning and have become what Justice William Brennan called “ceremonial deism.”
State religion, in other words, is constitutional as long as it doesn’t mean anything religious. Why anyone of faith supports this arrangement is beyond me. Perhaps they believe that empty symbolism is better than none at all.
A better solution is to liberate religion to be authentic by taking the government out of the picture. A good example is how most public schools have moved from school-sponsored to community-sponsored baccalaureate services during graduation weekend. Not only are such events constitutional, but they also free the community to have real sermons and real prayers rather than the lowest-common-denominator religious services of the past.
City council meetings, of course, present a different challenge. The current practice of opening with generic prayers — although constitutional under the Supreme Court’s rulings — continues to offend many believers and nonbelievers alike.
If we must have an invocation at government functions, then let’s do it in silence. That way the Rev. Turners in the room can pray freely in the name of Jesus — and everyone else can pray (or not) according to the dictates of conscience.
Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: [email protected].