Another View -- Noah Feldman: If government could pray in 1789, why not today?NOAH FELDMAN
November 09. 2013 12:43AM
SINCE 1999, the wonderfully named town of Greece, N.Y., has been praying. At town council meetings, a volunteer chaplain - generally but not invariably Christian - prays before the opening of business. The U.S. Supreme Court now must decide whether these prayers, which frequently invoke Jesus Christ by name, violate the constitutional ban against establishing religion.
Begin with the easy part: The Founders wouldn't have objected. Their prohibition on establishment was meant to stop the state from giving money to religious institutions and forcing people to participate in religious worship. They viewed public prayers at the start of legislative sessions as optional and even appointed a chaplain to offer them for the first Congress. Nor would they have been constitutionally offended by the mention of Jesus, even though their strong preference was for nondenominational appeals to the Creator or sometimes Almighty God.
The plaintiffs in Town of Greece v. Galloway suggest that in practice, in order to have the town consider their petitions, they are coerced to stand and listen to the opening prayer. If they are truly obligated to be there, they should win the case. After all, coerced attendance at prayer is an archetypal form of religious establishment that the framers knew and rejected.
If the coercion is more subtle, however, things get complicated. In the 1992 case of Lee v. Weisman, Justice Anthony Kennedy, writing for the majority, said that a nondenominational prayer offered by a rabbi at a middle school graduation ceremony violated establishment because the secondary school environment created "subtle coercive pressure" and "the student had no real alternative which would have allowed her to avoid the fact or appearance of participation."
Justice Antonin Scalia went predictably ballistic, charging the court with inventing "a boundless, and boundlessly manipulable, test of psychological coercion" in place of the good old definition of coercion as requiring legal sanction. But this opinion came, like most of Scalia's best work, in dissent.
The court has never extended this subtle-coercion test from juveniles to adults. But if the court is prepared to do armchair social psychology, evidence gathered since the Milgram fake-electroshock experiments of the late 1960s suggests that adults are as susceptible as teens to unspoken coercive pressures.
Logically, in the Greece case, Justice Kennedy should be willing to consider subtle coercion. But practically, it is hard to picture him extending the doctrine against school prayer to grown-up legislative settings. The reason has everything to do with a basic conflict between accepting public legislative prayer as a relic of our religious past and enforcing a more modern view of separation of church and state.
Since World War II, the court has gradually strengthened the establishment clause by prohibiting a range of practices that might've been acceptable in the 97 percent Protestant America of 1789 but seem more troubling in the face of present religious diversity. Bible reading and prayer in public schools were both prohibited in the 1960s.
In the 1980s, under the influence of then-Justice Sandra Day O'Connor, the court began to decide constitutionality by asking whether the government practice endorsed religion, making some people feel that they were favored members of the political community and others feel disfavored by exclusion. This approach draws no distinction between sectarian religion and the nondenominational variety, each of which would send a message of exclusion to the nonbeliever. Under the endorsement test, a legislative prayer like the one offered by the town of Greece certainly violates the Constitution by communicating exclusion to atheists and non-Christians at the very moment of potential political participation.
But the court has declined to apply the endorsement test to legislative prayer - precisely because that would mean banning the practice. In 1983, in Marsh v. Chambers, the court upheld Nebraska's practice of legislative prayer on grounds of its "unique history," which is a polite way of saying that the usual constitutional principles do not apply to practices that are archaic and routine. Purists don't care for the decision, but there was something sensible and Burkean about maintaining old practices, particularly if they offend almost no one.
The trouble is that the prayer in the town of Greece isn't old at all. It dates to 1999, not 1789. Culturally, its origins belong to the evangelical revival that began in the 1970s and may well be here to stay. Preserving it doesn't respect our ancient heritage, only the political power of contemporary evangelicalism, which itself leaves many people feeling uncomfortable, not just atheists and non-Christians.
The court, then, is on the horns of a dilemma. Legislative prayer, which it has allowed as a concession to the past, has become in some places a tool for the endorsement of religion. One solution for Justice Kennedy, who has never accepted the endorsement test, would be to split the difference and declare this particular legislative prayer coercive on the facts.
Don't count on it, though. What's most likely is that the court will reaffirm the exceptional nature of legislative prayer, warn the town against official coercion, and live with the contradictions between past and present.
Noah Feldman, a law professor at Harvard University, is a Bloomberg View columnist.