Yet Another Church/State Question . . .

[Eve]

(Trenton-AP) – For the first time, a Muslin cleric will offer the prayer at the start of the New Jersey Senate session today. It comes at the start of Ramadan, the holiest month in the Muslim world. Imam Mohamad Qatanani is from Passaic County’s Islamic Center. The American Muslim Union in Paterson says it’s a great achievement for New Jersey’s 400,000 Muslims

Yeah, big whoop for the Muslims—can someone explain to me WHY the bloody hell Senate sessions are starting with ANY prayers, be they Christian, Muslim or Jewish?

[BunnyGirl]

Tradition. I’m pretty sure that’s all it is. And, in this day and age of inclusion, why not the Muslims?

[Eve]

My gripe isn’t with Muslims, vs. any other religion—I don’t think a Senate session should open with ANY religious ceremony.

[andros]

I fully agree with you Eve. As to why, BunnyGirl has it right–tradition. Same reason we have “In Allah We Trust” on our currency, or why Strom Thurmond’s corpse is still a Senator.

[Jodi]

Because they always have been. You were expecting maybe something more complicated?

Since, out of curiousity, I looked it up, I’ll let you know that the guiding U.S. Supreme Court case on this issue is Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).

In Marsh, a member of the Nebraska legislature sued and alleged that the practice of having a chaplain on the payroll of the state of Nebraska to open the legislative sessions with a prayer every day was unconstitutional. Eventually, the U.S. Supremes held as follows:

1. MAJORITY: It is not unconstitutional because the practice reflects a custom and tradition that is part of “the fabric of our society” and therefore does not violated the anti-establishment clause. (Six justices, which actually is a surprisingly high number, IMO.)

2. DISSENT: All invocational prayers in state legislatures are unconstitutional as violative of the anti-establishment clause, and tradition is not a good enough reason to have them. (Two justices.)

3. DISSENT: While invocational prayers may not in all cases be unconstitutional, having the same chaplin for on the state payroll for sixteen years (and therefore having the same denominational prayers all that time), which was the situation in Nebraska, constitutes a preference of one faith over the others, and is unconstitutional. (One justice.)

So that’s why it’s okay. Now we can argue about whether that’s good reasoning or not.

[Kimstu]

Ed Buckner notes, in discussing James Madison’s support for SOCAS, that

Chaplainships of both Congress and the armed services were established sixteen years before the First Amendment was adopted. It would have been fatuous folly for anybody to stir a major controversy over a minor matter before the meaning of the amendment had been threshed out in weightier matters. But Madison did foresee the danger that minor deviations from the constitutional path would deepen into dangerous precedents. He took care of one of them by his veto [in 1811] of the appropriation for a Baptist church. Others he dealt with in his “Essay on Monopolies,” unpublished until 1946. Here is what he wrote: “Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. 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 … ?” The appointments, he said, were also a palpable violation of equal rights. Could a Catholic clergyman ever hope to be appointed a Chaplain? “To say that his religious principles are obnoxious or that his sect is small, is to lift the veil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.” The problem, said the author of the First Amendment, was how to prevent “this step beyond the landmarks of power [from having] the effect of a legitimate precedent.” Rather than let that happen, it would “be better to apply to it the legal aphorism de minimis non curat lex [the law takes no account of trifles].” Or, he said (likewise in Latin), class it with faults that result from carelessness or that human nature could scarcely avoid." “Better also,” he went on, “to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion.” […] (Irving Brant, The Bill of Rights: Its Origin and Meaning, Indianapolis: Bobbs-Merrill Company, Inc., 1965, pp. 423-424. Brant gives the source of “Essay on Monopolies” as Elizabeth Fleet, “Madison’s Detatched Memoranda,” William & Mary Quarterly, Third series: Vol. III, No. 4 [October, 1946], pp. 554-562.)

So you’re on pretty firm ground in thinking that official legislative prayers are theoretically in violation of SOCAS. But historically, religious activities (and sometimes, denominational restrictions) as an official part of national and state legislatures were the norm. And clearheaded separationists like Madison felt it made more sense to ignore them as trivial than to try to expunge them via the courts. The Supreme Court has upheld this somewhat contradictory attitude, as noted in this ACLU press release:

The Establishment Clause of the U.S. Constitution generally bars government from engaging in official religious observance; the United States Supreme Court has however, recognized a narrow exception to this rule for prayers offered at the commencement of legislative sessions. To be permissible under this narrow exception, legislative prayers must be nonsectarian, that is, not tied a particular sect or creed.

So presumably the NJ Imam is barred from saying stuff like “There is no God but God and Muhammad is His prophet”, etc. Personally, I’m all in favor of ecumenism to solve this problem: get enough Jews, Hindus, Muslims, Sikhs, Unitarians, Sethian Brothers, etc. into the non-sectarian legislative prayer act, and the Christian fundies will gradually become less attached to the practice and eventually we can get rid of it. (Which I consider desirable on the grounds of respect for religion as well as SOCAS: it always makes me uncomfortable to hear mandated non-sectarian prayers, because I think it’s inappropriate to tell a Christian pastor that s/he can’t mention Jesus or a Muslim not to mention Muhammad, etc. Just tell 'em all that this is a state-sponsored official event at which religious activity is inappropriate, and let 'em have all the prayer meetings they want before the start of the session.)

(Note added in preview: thanks for the cite, Jodi! Do you happen to know if there are earlier SCOTUS decisions than that 1983 case that also deal with legislative chaplains/prayers?)

[Eve]

Jiminy crickets—thanks for the educational—if depressing and aggravating—cite, Jodi!

With Bush appointing the next few Supreme Court justices, it looks like prayer before sessions is NOT about to go away anytime soon.

[Kimstu]

Noticed on reading Jodi’s post more carefully that apparently the 1983 Marsh decision upheld the constitutionality of a legislative chaplain’s offering sectarian prayers, which pulls the rug out from under my boring-from-within scheme to eliminate this dumb practice. Can any lawyer present tell me whether or how the sectarian/non-sectarian nature of legislative prayer really affects its constitutionality in the eyes of the Court?

[Jodi]

First, and I know I run the risk of pissing people off for whom these issues are important, I am gratified to see that no less an authority than Madison, and all those years ago to boot, recognized that some of these things are trivial. This, IMO, is one; “In God We Trust” on money is, again IMO, another. I have just always thought that there were far more egregious constitutional battles deserving the good fight. I will now don my asbestos undies if people wish to take forceful issue with this.

[qulote]Note added in preview: thanks for the cite, Jodi!
[/quote]

You betcha. Sorry to disappoint you, Eve; who said law is pretty?

Do you happen to know if there are earlier SCOTUS decisions than that 1983 case that also deal with legislative chaplains/prayers?

Uh, no, I don’t. Because I haven’t looked and I frankly don’t have time to today. I assume there are, but I haven’t even read Marsh all that closely, so the honest answer is “I don’t know.”

Noticed on reading Jodi’s post more carefully that apparently the 1983 Marsh decision upheld the constitutionality of a legislative chaplain’s offering sectarian prayers, which pulls the rug out from under my boring-from-within scheme to eliminate this dumb practice.

Actually, my personal opinion is that it is better to have sectarian prayers (“in the name of Allah . . .”) that reflect real denominations or beliefs than to have prayers that are so general they don’t really reflect anyone’s true belief (“dear Spirit of Goodness, however each of us may choose to perceive you and call you . . .”). But, like you, I’d like to see them take turns, so to speak, to reflect that while not everyone believes the same thing, everyone may wish for blessings upon the gathering.

Can any lawyer present tell me whether or how the sectarian/non-sectarian nature of legislative prayer really affects its constitutionality in the eyes of the Court?

Well, to take a flyer at it, I think it is easier to argue that a prayer does not constitute the advancement of a particular religion – a constitutional no-no – if you keep it non-sectarian. My opinion, as set forth above, is that a prayer ought to be able to be sectarian within reason and still not constitute an advancement of a particular religion, if you do not have the same religion doing the prayer every year. But the other way to handle it and stay on the right side of the constitutional line – and probably the safer way to handle it – is to mandate that the prayers be strictly non-sectarian.

[Gaudere]

Actually, my personal opinion is that it is better to have sectarian prayers (“in the name of Allah . . .”) that reflect real denominations or beliefs than to have prayers that are so general they don’t really reflect anyone’s true belief (“dear Spirit of Goodness, however each of us may choose to perceive you and call you . . .”).

I’m voting for the Aleinu…
“It is our job to praise the Master of everything,
and to give greatness to the Creator of the beginning,
for He has not made us like the nations of the lands,
and He has not made us like the families of the earth,
for He has not made our portion like theirs,
and our lot like their populations.
For they bow to nonsense and emptiness,
and they pray to a god who cannot save…”

Heh. I’d like to see a Jew recite that to all the Christians. It’s only as offensive (if one is minded to take offense) as the “no one comes to the Father except through me…” or “there is no God but Allah and Muhammad is His prophet.” bit. I can’t help but see the vast possibilties for contentiousness in sectarian prayers, and I don’t even want to think about how they would determine who gets to speak: Catholic (Ave Maria)? Pagans? Satanists? Atheists? Scientologists?

OTOH, I would have thought that sectarian prayers every single day by one chaplain paid for by public funds was a blatant favoring of one religion over another, but apparently the Supremes don’t see things as I do, and perhaps would not be bothered by favoring Christianity over Paganism when choosing who got to pray before the legislature. I think, as Madison did, that it is utterly ridiculous to favor one religion over another, or over none, simply because of sheer numbers of adherants or custom and would FAR rather have no official prayers at all. ::sigh::

[Gaudere]

First, and I know I run the risk of pissing people off for whom these issues are important, I am gratified to see that no less an authority than Madison, and all those years ago to boot, recognized that some of these things are trivial. This, IMO, is one; “In God We Trust” on money is, again IMO, another. I have just always thought that there were far more egregious constitutional battles deserving the good fight. I will now don my asbestos undies if people wish to take forceful issue with this.

The problem is, it’s always those of us whose rights are being stepped on in some manner that are told to let it go because “it’s no big deal.” It’s no big deal that our supposedly secular government officially prints on our money that “we” trust God. It’s no big deal that a particlar religious sect’s prayers are prayed every single time before our legistlature meets. If it’s no big deal, why the *&%$#! can’t we get rid of it!? To the people who are offended–and whose constitutional rights I believe are violated–it is said “it’s no big deal.” But just try to get rid of these trappings of religion tied to our government and watch how many people suddenly think it’s a very big deal.

I agree that there are more important things to worry about–I’d put equal rights for gays far higher on the agenda than getting “in God we trust” off our money–but you seem positively gleeful that you have found support for your dismissal of these issues as trivial. And that bothers me.

[andros]

But just try to get rid of these trappings of religion tied to our government and watch how many people suddenly think it’s a very big deal.

Praise Gaud. Amen.

::d&r::

[Jodi]

The problem is, it’s always those of us whose rights are being stepped on in some manner that are told to let it go because “it’s no big deal.”

You do see, of course, that if there is no “right being stepped on” (at least in theory) then there is nothing to be either a big deal or a small deal, and therefore nothing to let go of. Of course no one whose rights are being exhalted is ever told “just let it go” – just let what go? I don’t quarrel with your statement, except to the extent it seems to me self-evident. And I certainly do not say that every theoretical violation of constitutional rights is a minor thing; I just refuse to act as if every theoretical violation is a major thing – a big deal, if you will.

It’s no big deal that our supposedly secular government officially prints on our money that “we” trust God. It’s no big deal that a particlar religious sect’s prayers are prayed every single time before our legistlature meets. If it’s no big deal, why the *&%$#! can’t we get rid of it!?

Precisely because we have always done it and there is no harm in continuing to do it, and therefore no reason to stop. If you do perceive significant harm from the invocation of a non-sectarian prayer before congressional sessions, please let me know what that harm is.

To the people who are offended–and whose constitutional rights I believe are violated–it is said “it’s no big deal.” But just try to get rid of these trappings of religion tied to our government and watch how many people suddenly think it’s a very big deal.

This does not follow. If you wish it to go away and the court refuses on the grounds that it is a ritual that has always been done and that does not promote religious establishment, how are they elevating it to “a very big deal”? They aren’t; they are acknowledging that it is precisely because it is NOT a “very big deal” that it is not violative of the constitution. You cannot have it both ways. You cannot see that the courts say something is okay precisely because it is so minor, and at the same time say they are making “a big deal” out of it.

I agree that there are more important things to worry about–I’d put equal rights for gays far higher on the agenda than getting “in God we trust” off our money–but you seem positively gleeful that you have found support for your dismissal of these issues as trivial. And that bothers me.

I don’t know what to say. Sorry? I am not “gleeful” about the matter, but only because I frankly don’t care about it enough to work up a good head of glee. (And why don’t I care about it? Because I don’t think it’s important in the great constitutional scheme of things. Because it’s not a big deal to me.) I do think the issue is trivial. I don’t see a particularly compelling reason to do away with non-sectarian invocation – beyond “well, we don’t like it,” which frankly is a non-starter, constitution-wise. I’m sorry if that admission somehow troubles you, but I can’t deny it pretty accurately sums up my position.

[manhattan]

If you do perceive significant harm from the invocation of a non-sectarian prayer before congressional sessions, please let me know what that harm is.

Significant? Well, of course that’s in the eyes of the beholder. But for one thing, it provides plenty of fuel to every Fundie who wants to post the 10 Commandments in the schoolroom, or co-opt the P.A. system to praise Jesus. When one trys to claim that the State should not be establishing religion, it sure makes the job more difficult when your speaker’s fee proclaims that you trust in God.

This does not follow. If you wish it to go away and the court refuses on the grounds that it is a ritual that has always been done and that does not promote religious establishment, how are they elevating it to “a very big deal”? They aren’t…

You’re entirely correct that the courts are not elevating it to Big Dealdom[sup]TM[/sup]. But seriously. Go ahead and induce your local legislator to introduce a bill abolishing the Chaplain. You’ll see exactly how big a deal this is to some people when 10,000 people march on the State Capitol, when the newspapers fulminate about the loss of the Traditional Christian Nation, &cetera. The fact that the courts are able to deal with this issue dispassionately does not mean that everyone is, and the passion does not run exclusively to those of us who do not trust in God.

[Jodi]

I don’t know how much longer to keep responding to this (and defending it) without making it seem like I care a whole lot about the issue, which frankly I don’t. But what the heck.

Significant? Well, of course that’s in the eyes of the beholder.

Exactly. I never said it might not be significant to Eve or Gaudere. I said it wasn’t significant to me. And that I am gratified to find that Madison felt, as I do, that there is wisdom in picking your battles. (Note lack of glee.)

But for one thing, it provides plenty of fuel to every Fundie who wants to post the 10 Commandments in the schoolroom, or co-opt the P.A. system to praise Jesus.

This is true, but I don’t think it’s a big deal, either. It’s just human nature to be given an inch and try for a mile. Little kids do it, as well: “Can I have a cookie?” “Yes.” “Well, then, can I have two cookies? No? How about a cookie and a slice of cake?” The point is, things that are constitutional are allowable and things that are not are not (duh), and part of how we decide this is by determining how egregious the behavior is (because more egregious behavior is more likely to lead to unconstitutional results).

When one trys to claim that the State should not be establishing religion, it sure makes the job more difficult when your speaker’s fee proclaims that you trust in God.

I continue to fail see why it does. One can say “Look, it says IGWT on the money because it always has, which is kind of a dumb reason but there it is. Now let’s talk about some real examples of government attempting to establish religion . . .” Besides, nobody thinks you personally are in charge of what’s printed on money or spoken before the legislature convenes.

Go ahead and induce your local legislator to introduce a bill abolishing the Chaplain.

Why in the world would I do that, seeing as how I don’t care whether it’s done or not and believe my time and energy is better spent on more important issues?

You’ll see exactly how big a deal this is to some people when 10,000 people march on the State Capitol, when the newspapers fulminate about the loss of the Traditional Christian Nation, &cetera.

I know you’re engaging in hyperbole, but I feel compelled to point out that this issue has been looked at and nobody marched anywhere over it.

The fact that the courts are able to deal with this issue dispassionately does not mean that everyone is, and the passion does not run exclusively to those of us who do not trust in God.

But yet, with respect, it is those who object to it who are the ones raising the issue by filing suit over it. You can hardly accuse those who disagree with you of being “passionate” in their disagreement when you yourself attacked them (in their eyes) by filing suit. Besides, I never said nobody cares about it; I just said I don’t particularly care about it. I’m mildly against abolishing the practice of having an invocation because I personally think it’s harmless and kind of nice; I see no reason to abolish it; and I see nothing to be gained by expending the time and effort to attempt to do so. But that’s just me.

[manhattan]

*Originally posted by Jodi *
** I know you’re engaging in hyperbole, but I feel compelled to point out that this issue has been looked at and nobody marched anywhere over it.
**

Heh. I tried to find a link to some of the outrage that occurred when there was an attempt to take the 10 Commandments down from that judge’s courtroom, to demonstrate that any hyperbole was minute.

Guess what I found? “Demonstrating the 10 commandments of OS/2.” “The Ten Commandments of March Madness.” “The Ten Commandments of on-court behavior.”

You get the picture – not my most fruitful search. Since I care more about this than you, but only by a tiny bit, I’ll let it drop.

[Jodi]

One tiny clarification, in the “cover my ass” category:

When you mentioned people marching, it was in the context of abolishing the chaplain. So when I said the issue has been looked at without much protesting, I meant that issue (ie, invocations). I do not know if people have actively marched in favor of or against The Ten Commandments. Though I frankly thought it was highly overrated as a movie, myself.

[Gaudere]

Precisely because we have always done it and there is no harm in continuing to do it, and therefore no reason to stop.

I see little good in it–anyone who wishes to pray may do so, we don’t need an official prayer to allow our government workers to exercise whatever religion they choose (a religion that may not be included even in a non-denomination prayer; Pagans and Satanists, f’rinstance)–and I believe it does violate the constitution. The example of hiring a single-denominational minister with public monies to pray every single time before the legistlature does seem to be offically favoring a particular religion, and a concomitant lowering of others. Shouldn’t we have a reason to keep things around in our laws and government besides “we’ve always done it”, particularly if it’s questionable constitutionally and takes up time and money? I personally would not agree with hiring someone to say at the beginning of every legislature, “man, I’m glad God doesn’t exist! I hope our senators and representatives can use their wholly-un-deity influenced judgement to make good laws,” no matter if we always did it before; it’s unnecessary, and seems as equally unconstitutional to me as a praise of God and request for His guidance for the people there. It seems similar to arguing for maintaining an opening remark about the evils of communism, simply because it’s been around for a long time, and “it doesn’t do any real harm.” As for harm in continuing to do it, don’t we (at least sometimes) pay for those ministers? Don’t we have the work-time we have paid for of our public servants taken up with ritual that does seem to imply the superiority of a certain religion and/or of religion above non-religion?

This does not follow. If you wish it to go away and the court refuses on the grounds that it is a ritual that has always been done and that does not promote religious establishment, how are they elevating it to “a very big deal”?

Well, I was speaking more of the people who oppose getting rid of it, rather thna the courts. However, IGWT was not always done; it’s only been around since the 50s. It was apparently enough of a big deal to get it on the books once. I guess I tend to be a minimalist with ritual and goverment; if there’s no good reason for it and it takes up time and money and IMHO is an offical promoting of religion and makes the sort of 10-C-posted-in-school creeping Christianity easier, I think getting rid of it would be a good move. A major reason these sort of things stick around, I suspect, is the same reason as for the sodomy laws; it simply doesn’t “look good” to argue too strenuously for sodomy or against religion. I personally think the mandated opening prayer, IGWT, DOMA and sodomy laws are unconstitutional and primarily stay legal because of public support. Never mind that gays think the sodomy laws are extremely important even if they aren’t currently being arrested for it; until Ma and Pa Public get worked up about it, I think these things are going to stay on the books, simply because, well, “we’ve always had a prayer,” “it’s already on the money,” “marriage has always between a man and a woman,” and “I’m not going to argue in support of sodomy!” Forgive me if I don’t find those particularly compelling reasons.

Mithras the Sun-God
Was a jolly happy soul,
And he slew a bull
On solstice day
So the world would not get cold.

[Polycarp]

As a Christian who believes sincerely that people find their way to God through a wide range of ways, I find any sectarian prayer, including my own denomination’s, obnoxious to force on others. And most non-sectarian prayers are very thin soup. Beyond which, “people whose faith is in atheism” (;)) should not have to put up with theists touting their particular belief.

However, just because it was the former Flora McFlimsey who did the OP, I can’t help but pick up on her typo:

– For the first time, a Muslin cleric …

You think he was from Damask-us? Would you prefer a musical invocation from Eugene Organdy?

[Jodi]

GAUDERE says:

I see little good in it–anyone who wishes to pray may do so, we don’t need an official prayer to allow our government workers to exercise whatever religion they choose (a religion that may not be included even in a non-denomination prayer; Pagans and Satanists, f’rinstance)–and I believe it does violate the constitution.

Well, I see some good in it and I don’t believe it violates the constitution. So there we are.

However, IGWT was not always done; it’s only been around since the 50s.

First, by “always” I didn’t mean “since the dawn of time” so much as I meant “for a very long time.” Second, IGWT has been on folding money since the '50s; it has been on coins since the Civil War, which, IMO, equals “a very long time.”

I guess I tend to be a minimalist with ritual and goverment; . . .

And I’m not. I think there is a lot to be said for the continuity and nobility of a dash of ritual.

. . . if there’s no good reason for it and it takes up time and money and IMHO is an offical promoting of religion and makes the sort of 10-C-posted-in-school creeping Christianity easier, I think getting rid of it would be a good move.

And I say if there’s an okay reason for it and it doesn’t take up much time or money and IMHO is not an official promoting of a particular religion and does not make creeping Christianity easier and the time, energy, and resources of people and government are better served attacking more important constitutional issues, I think leaving it alone is just fine.

Which really is the bottom line: we disagree. But different people are fired up by different things. If it’s something that to you is worth getting into a swivet over, well, you go girl. I absolutely respect your right to fight for what you believe in; I just don’t necessarily feel compelled to believe in it, too.