Michael Barry, left, and Brett Granville, members of the Greece town board, participate in a moment of prayer at the start of a meeting in Greece, New York, U.S., on Tuesday, June 16, 2013. The towns prayers before the start of board meetings are now the focus of a U.S. Supreme Court fight that may reshape the legal limits on religious expression at official functions across the country. Photographer: Heather Ainsworth/Bloomberg
Public prayer at legislative meetings, an undeniably touchy topic, will take center stage at the U.S. Supreme Court on Nov. 6. The court will hear arguments in Town of Greece v. Galloway, in which it will review a federal appeals court decision striking down such prayers—an outcome clearly at odds with the high court’s last word on the subject. That last word came back in 1983 in Marsh v. Chambers, when the Supreme Court upheld legislative prayer in the Nebraska Legislature.
One topic sure to arise is what the Founders intended by what Thomas Jefferson called their “fair experiment.” The expression described a compromise that would allow religion to flourish without compelling participation in a nationally established church. The alliance behind the compromise was unlikely in some respects. On one hand, it consisted of devout Christians such as John Jay, Patrick Henry, Samuel Adams, Roger Sherman, and John Hancock. On the other hand, it also included those espousing theistic rationalism and deism, such as Jefferson, Benjamin Franklin, and James Wilson. Despite deep religious differences, the Founders had something important in common: They prayed.
Religious coercion was a great concern to the Founders, and rightly so. But their view of coercion was true coercion, in which people were ordered to act (or refrain from acting) in violation of their conscience. For the Founders, coercion looked more like the current health care dispute in which the government is compelling family businesses to provide insurance coverage for abortion-inducing drugs regardless of those families’ deeply held religious beliefs. That’s coercion. As to how the Founders viewed legislative prayer, there can be no question; they considered it a desired accommodation of religion, and not coercion.
The Founders also held in common a belief that can best be described as God’s providential direction of history and the value of prayer. Attempts to deny this will not refute history. While Jefferson despised coercion, no one can dispute he attended Christian worship services in the U.S. Capitol—and received high marks from clergy for his faithful attendance in inclement weather.
Examples abound: Franklin, not among the devout, moved for prayer at the Constitutional Convention, and George Washington famously observed in his farewell address: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.”
The Founders, with rare exceptions, also saw no problem with issuing proclamations of thanksgiving to God, calls for fasting, Christian congregations using government facilities for worship, and even using federal funds to finance missions to Native Americans. All these are a matter of history, which anyone with a computer can easily verify.
No historian denies that the authors of the First Amendment regularly opened sessions in prayer. Arguing that the Founders intended to prohibit invocations in the amendment’s “establishment” language is likewise senseless; claiming so advances the ludicrous notion the Founders intentionally violated what they were ratifying.
Whether society has changed in ways that argue for modifying our approach on such policy issues is a subject for democratic discourse, not constitutional proscription.
The case before the Supreme Court will probe the “correct” legal tests for analysis—perhaps not the most exciting of subjects, but a few broad and critical principles are worth considering.
For one, the Founders, who looked for common religious ground, provided us with an important lesson. They took “coercion” seriously and did not dumb it down to include being “offended.” The people who filed suit against the town of Greece admit that no one forced them to recite prayers or take part in a ceremony. As well, they acknowledge the town allowed citizens to pray in any faith tradition of their choice (including none). The types of prayers heard at the town’s meetings are broader than what the Founders heard, with attendees voluntarily offering Christian, Jewish, Baha’i, and Wiccan invocations.
But unlike the Founders, the plaintiffs here claim personal offense over hearing anyone pray. In so claiming, they have trivialized “coercion” to a shadow of its meaning, rendering it instead as their personal distaste over hearing others pray. Under such a standard, virtually no religious accommodation survives, and the eggshell-thin sensitivities of the most easily offended prevail. And this, of course, is their philosophical objective.
A more noble vision united the Founders and moved them in their life-and-death struggle. They looked for a diversity of opinions and beliefs and had the wisdom to know that accommodating religion and morality were, in Washington’s words, “indispensible supports” to democracy. In belief and practice, they rejected paltry personal complaints like “offense” and instead respected their differences.
We may have a larger circle of beliefs today, but we would do well to follow their example.
Alan Sears is president and CEO of Alliance Defending Freedom, and Joseph Infranco is vice president of alliance coordination. Alliance Defending Freedom attorneys are co-counsel in the town of Greece’s case before the U.S. Supreme Court.
