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Richard Davis: The Supreme Court errs on legislative prayers

Published: Wednesday, May 7 2014 12:00 a.m. MDT

The Supreme Court decided that the Greece, New York, town council could begin its meetings with a minister-led prayer. The Supreme Court’s ruling is the wrong one.

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Let’s say that I have business before my local city council, but before I can speak I have to agree to participate in a Buddhist ritual or perhaps a Muslim prayer or maybe a Wiccan ceremony. I might be simply respectful the first time, but over time I would become annoyed that I must sit through a religious ceremony that is spiritually hollow to me in order to speak to my local government body. Even more than that, I may believe that participation in such a ritual is a violation of my own religious beliefs.

On Monday, the U.S. Supreme Court ruled that scenario is not so far-fetched. The court decided that the Greece, New York, town council could begin its meetings with a minister-led prayer. The Supreme Court’s ruling is the wrong one. Here are a few reasons why:

The court should respect the variety of religious beliefs, or lack thereof, of Americans today. A Christian minister-led prayer at a city meeting would be unobjectionable to most Americans, since the vast majority of Americans consider themselves Christians. But not all. Americans who are Christians should put themselves in the position of those who are not. How would Christians feel being expected to participate in a religious practice we do not believe in, and in fact may even consider Satanic?

The court also should not be in the business of advising citizens on their religious beliefs. The court upheld the practice on the grounds that “[e]ven those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being.” Is it the federal government’s job to tell me that I should “show respect for the divine” or is it none of their business? What else can the government tell me I should or should not believe?

Third, the court erred in its recounting of tradition. Repeatedly, the court relied on the long practice of legislative prayers since the First Congress as a justification for its decision. But, significantly, the Constitutional Convention did not begin with prayer. In fact, when a public prayer was suggested, the Framers actually voted not to do it. That is a tradition the Framers set that government could follow, but hasn’t.

Fourth, the court’s decision subtly reinforces the practice of an established religion and its boon companion of religious discrimination. The justices said that legislative prayers have not led to an established church. (This despite the fact that nearly every prayer said in the Greece Town Council meetings was Christian.) But is that really true? Perhaps had the court declared such invocations a violation of the Establishment Clause long ago, there might have been a different approach by the public and government towards religious diversity. Perhaps there would have been less religious discrimination in the United States, some of it government-sanctioned. Maybe there would have been more than one non-Protestant president in the history of the nation. Maybe Jehovah’s Witnesses would not have been assaulted and had their churches burned. Maybe Mormons would not have been driven from Missouri by order of the state’s governor.

The town of Greece used to open its sessions with a moment of silence. It should return to that practice, as should other city councils. Or it should allow a citizen to speak at the beginning of each council session, which could be in the form of a prayer or a just a statement. As long as the legislative body instituted a “first-come, first-serve” policy, did not exclude non-clergy, and did not censor content, there would be no violation of the First Amendment. That would be a religiously neutral approach in accordance with the Establishment Clause. Or legislative bodies could simply begin their meetings with a pounding of the gavel and a welcome by the presiding officer.

These solutions would not be taking God out of a governmental meeting. Rather, they would be placing the Constitution’s Establishment Clause back in. Since many Americans believe that the Constitution, along with the Establishment Clause, was divinely inspired, perhaps it is possible to honor God and the Constitution at the same time.

Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU.

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