Originally posted on the Faculty Blog on November 30, 2008.
I am, without question, a spiritual man. I don’t know that I’d go so far as to call myself “religious”; it’s not easy to keep one’s faith while surrounded on most sides by a grab for the most money, as law school tends to be. However, I’ve always balanced my strong personal belief in the value of (and my regular practice of) prayer with what I consider to be the immeasurable importance of the separation of church and state. Usually, this means I just let public showings of religion roll off my back; I’m not offended by choruses of “Merry Christmas,” and I didn’t gripe when benedictions have been said at Marquette gatherings I’ve attended. By and large, I’m a big fan of keeping a healthy dose of perspective; if one puts oneself in situations where prayer is likely to be found (for example, by attending a Jesuit law school), one needs to expect that prayers are going to happen and not take it as an affront to the First Amendment. Put another way, who does it really hurt if I observe 30 seconds of silence so that someone else can pray uninterrupted?
All that being said, this PrawfsBlawg post — written by Mississippi Law Professor Chris Lund — got me thinking about whether it’s reasonable to accept prayer in all circumstances. Lund discusses the “legislative prayer controversy,” which he illustrates by linking to an article about a 70-year-old man’s arrest for praying loudly over a City Council’s moment of silence, as well as a video clip of protesters interrupting the opening prayer of last year’s Senate session, which was given by guest Congressional chaplain (and Hindu) Rajan Zed.
Lund goes on to say:
I discuss the Zed incident (and others) in a piece that’s coming out in the spring. The piece addresses the history of legislative prayer in this country; my thesis is that legislative prayer is more controversial and causes more division than some have believed. I take a bit of an issue with the history provided by the Court in Marsh v. Chambers, and in particular the Court’s statement that legislative prayer is “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” I don’t think that’s an entirely accurate summary of what legislative prayer has meant for this country. . . . As the incident with Zed indicates, what happened to Catholics [in the past] seems to be happening to other religious groups now — a frequent church/state theme these days.
Setting aside for a moment the fact that I think that Lund’s thesis is a bit of a straw man argument — is there anyone here who doesn’t appropriately recognize the divisiveness and controversy in legislative prayer? — I have mixed feelings about things like the Zed incident. Emotionally, I think anyone who’d be as petty and childish as these people were in the temper-tantrum-like stunts they pulled doesn’t deserve my or anyone else’s respect. There’s protest, and then there’s just being rude and disruptive because you can be. I think it’s stupid to be offensive when the message can be just as easily conveyed tactfully. “Civil disobedience” involves respecting the authorities for doing what they need to do; if these people thought they were reincarnations of the jailed civil rights advocates in the 1950’s and 60’s, they’re sadly mistaken.
Then again, while I don’t agree with the commenter to the post who equated “moments of silence” and wishes of “happy birthday” to violations of his First Amendment rights, I think having a Hindu chaplain giving an opening prayer illustrates why allowing opening prayers at any governmental event is a dangerous proposition. I can see how a Hindu prayer might make people feel a bit uncomfortable. They can make it fit what they believe, but it takes effort; it’s not as comfortable a transition as it would be for a Judeo-Christian prayer of some kind. But should anyone really have to make that effort at all? Does the fact that it’s been a “custom” for centuries warrant its acceptance today? After all, it was a “custom” to treat slaves as three-fifths of a human being; I’m not sure the majority today would support a continuance of that custom. And — if one were to argue my initial logic of putting oneself in a position to face these kinds of prayers — is it reasonable to say that if someone doesn’t want to deal with the opening prayer of the Senate, he or she shouldn’t seek election to the Senate? That seems a bit ridiculous to me. After all, not only is the Senate a public institution as well as a state actor, but allowing prayer here is a psychic connection between religion and government, and the Establishment Clause has long been construed to equate these kinds of showings of faith with “respecting an establishment of religion.”
So what do you all think? Is it worth sounding the alarm about, or is this a harmless showing of an acceptance of a deity from a nation whose very core is based on exactly that?