Prayer is Everywhere
Prayer is everywhere. Everyone is disputing prayer, even though the First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Or maybe the problem lies in the wording of the amendment itself. Establishment or free exercise? The Supreme Court has set numerous establishment clause tests, and it will be interesting to see which test(s) survive the courts’ current reviews.
The Current Examples
Joseph Kennedy, a football coach at a public school, wants to lead his team in prayer after every game. He is arguing to the Supreme Court that he has a free exercise right to do so, even though his employer, the school district, told him that a public school official publicly endorsing religion violates the Establishment Clause.
For seven years the Freedom From Religion Foundation [FFRF] has been contesting Judge Wayne Mack’s use of prayer in his Texas courtroom. The judge starts his courtroom sessions by having his assistant introduce a chaplain, who is part of a chaplaincy program the judge created in order to bring God to the people in his courtroom. The district court ruled that the judge had violated the Establishment Clause. The Fifth Circuit, however, stayed the district court’s opinion, and recently heard oral arguments that the district court misunderstood the Establishment Clause and that the judge is free to continue his prayer service. The Fifth Circuit will decide if Mack’s prayer will continue or stop.
The Chief of Police of the city of Ocala, Florida, sponsored a Community Prayer Vigil after a violent crime spree in the city. The district court ruled that the city and police chief’s sponsorship of the event was unconstitutional, although the mayor’s involvement was not. That case was recently argued in the Eleventh Circuit, where appellants claimed the city’s sponsoring of the prayer was constitutional.
As often happens in constitutional law, the judges are arguing about what test or standard to use. Here are the choices they could make.
If you really believe in free exercise, the prayers always win. People who pray say that the Free Exercise Clause protects their ability to pray, wherever and whenever they want. If the government tries to stop their prayer, it is violating their free exercise right to practice their religion as they see fit. Individuals have free exercise, and religious practice cannot be stunted by the government.
That’s an interesting argument, unless you believe in the Establishment Clause. There are two religion clauses, not one. The Establishment Clause is supposed to prohibit religion-based government. The Florida district court made this point in the Ocala case: If individuals or religious groups organize a prayer vigil and gather in the Downtown Square in the City of Ocala to pray for an end to violent crime, the First Amendment to the United States Constitution will protect the “free exercise” of their religion. But what if the government organizes and sponsors the prayer vigil? That is a problem because under the Establishment Clause of the First Amendment, the government cannot conduct such religious activity. Yet that is what happened here. Unfortunately, the Supreme Court has been all over the map on what the Establishment Clause prohibits or allows. In my law and religion class, we repeatedly have to go over all the tests chosen by the Justices and figure out which works best and why, or which works worst and why. All the courts dispute what standard should apply.
Like my students and the courts today, you can take your pick of what the Establishment Clause demands.
The Establishment Clause is about the government. It does not limit private parties. The government is not allowed to establish a religion. So if you work for the government, you are not allowed to establish a religion. It seems to me crystal clear that a football coach at a public school, a state court judge, and the city’s chief police officers are all representatives of the government. They are not supposed to violate the Establishment Clause. They cannot promote, endorse, or coerce religion if they are part of the government. That rule applies to me, too, as a professor at a state’s law school. I cannot endorse or coerce religion for my students. The Establishment Clause limits me as well as these other government employees. The Establishment Clause limits the government’s free exercise of religion. The courts should decide that these three people are part of the government. In Florida, the court pointed out that the police came up with the idea, sponsored the prayer vigil, used police stationery, sent invitations, gave uniforms to the chaplains, and even made a Facebook page for the event. Government conduct.
By what Standard?
Notice all the words I used in the paragraph above. Endorse, promote, coerce, or something else? That’s been the main problem with the Establishment Clause: the Justices cannot agree about what it means. Justice Clarence Thomas does not even believe that the states are bound by the Establishment Clause, even though the Court has said the Fourteenth Amendment does bind states to the First Amendment. Without an Establishment Clause, the states could back religion any way they like. But to date, the Establishment Clause still applies to the states. By which test?
Town of Greece v. Galloway, the Supreme Court’s 2014 case, upheld by a 5-4 vote the legality of Town of Greece’s prayers at town hall meetings, even though the lower courts had held that they violated the Establishment Clause. The majority relied heavily on history, concluding that because many legislative prayers had occurred in American history, especially at the time of the Founding, Greece’s town hall prayers must be constitutional. The four dissenting justices, however, complained that Christianity was overrepresented in Greece’s prayers, and that the government needed to diversify in order to meet the Establishment Clause standard. All the religions had to be present if the Establishment Clause were to be obeyed. Judge Mack agrees—his prayer is open to people of all faiths and is voluntary, although it is usually Christians who lead it.
Mack therefore considers history to be part of the test. In Mack, is it law office history or historians’ history that the court should consider? The Fifth Circuit said that the United States had clearly had judicial prayer throughout its history, and so they could follow Town of Greece regarding legislative prayer. FFRF challenged that conclusion, saying that judicial prayer was a rare occasion, taking place only occasionally, and noted by the newspapers as an unusual practice. An amicus brief for FFRF by a group of historians says that judicial prayer is rare and unusual, and that their opponents are doing incorrect law office history.There is a lot of law office history in the opinions. The historical test suggests we must ask if legislative history (Greece) equals judicial history (Mack), and figure out how much historical judicial prayer there was. That’s what the historical question leaves you with. Is there a lot of prior judicial prayer? Or not?
The Lemon Test
The 1971 Supreme Court opinion Lemon v. Kurtzman provided three factors to consider in establishment. Lemon says 1) the statute must have a secular purpose; 2) it can neither promote nor inhibit religion, and 3) there cannot be excessive government entanglement with religion. Do the Lemon factors continue to rule Establishment Clause cases? Many Justices have said no, and rejected Lemon as unworkable. It has been highly criticized, but never overruled, so everyone still wonders if it can provide an answer where other tests fail. Many justices agree it has failed, but other courts continue to apply it. The Florida court applied it in Ocala. If I were applying Lemon, I would conclude that prayer is never secular. Period. It is a core religious practice. In upholding the government’s sponsorship of the Bladensburg, Maryland cross in a public park, however, Justice Alito’s opinion concluded the cross was a secular symbol. I think that conclusion is simply terrible history. The cross is the central religious symbol of Christianity. It is not Jewish, Hindu, Muslim, Buddhist, or agnostic. Lemon might provide a strong establishment test, and that might be why so many Justices are rejecting it. As the cross case shows, secularity can become a more difficult test than it initially appears to be.
Justice O’Connor shrewdly added the endorsement test to Establishment Clause jurisprudence, hoping to clarify some of Lemon’s weak spots. She argued that government endorsement “sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the primal community.” Courts have repeatedly used the endorsement test as a way to judge whether what is going on in schools violates the Establishment Clause. The lower courts thought Judge Kennedy had endorsed religion. An amicus brief in Kennedy asked that the endorsement test end because of its uncertainty and poor results.
It seems that in the recent cases, the football coach, the judge, and the police chief have all endorsed religion. How do we know that? Because the prayer creates insiders and outsiders. That insider/outsider distinction has a lot of strength, because it should remind us that the government is not supposed to endorse one religion while leaving out the others. The government is not supposed to create insiders and outsiders. In the recent cases, the students, lawyers, and citizens are made outsiders by their disinterest in praying as everyone else participates. Nonetheless, the Supreme Court may get rid of the endorsement test.
The Supreme Court Justices have argued about coercion. Justice Kennedy chose the coercion test because he disliked Justice O’Connor’s endorsement test. The Justices who support the coercion test disagree among themselves about what coercion is. Justice Kennedy thought peer pressure in graduation prayer was coercive. Other Justices think the government has to penalize you for you to actually be coerced; only “force of law and threat of penalty” really coerce you, as Justices Scalia and Thomas argued.
Signs in Judge Mack’s courtroom tell people they do not have to stay for the prayer. They can be there when it is announced, leave, and then return to the room. For this reason Mack’s supporters say the prayer is completely voluntary. And Ocala’s lawyers have said there is no coercion in the Community Prayer Vigil, just people voluntarily praying after terrible community crime. In Kennedy, in contrast, the school district’s lawyer told the Court that if they rejected endorsement they would have to remand on coercion, because even if the government could not be held liable for endorsing religion, it could be liable for coercing students to pray. Coercion could be what you faced if you thought your football playing career depended on whether or not you showed up for prayer.
Or just the facts?
Retiring Justice Breyer is known for relying on the facts of the cases before him, and concluding that many Court decisions have to be based on the facts. He relied on the facts of the monument and its surroundings when he decided the courthouse Ten Commandments picture was unconstitutional but the Texas park Ten Commandments statue was constitutional. Breyer also went with the facts in his dissent in Town of Greece, even calling it a “fact sensitive case.”
Justices have criticized Breyer for the same reason they criticized endorsement; neither is strict enough to draw a clear conclusion, and so the decision winds up being based on the preferences of the individual Justices. Following your preferences is not something Justices are expected to do. So…free exercise, private speech, history, Lemon, endorsement, coercion, just the facts, or something new. What shall we choose? What about an old test, separation of church and state?
There has been a lot of discussion in recent years that the current Supreme Court has abandoned the separation of church and state. There are two opinions — Trinity Lutheran and Espinoza — that say the government must fund religious schools, and a third case — Carson v. Makin — which will be decided soon. It will probably also require the government to fund religious schools, no matter what the schools do.
There was also the cross case, mentioned above, in which the Court concluded the Christian cross is secular and therefore displayable by the government. That case definitely does not have a wall of separation between church and state. Religion has also won many COVID cases, especially in the Supreme Court, with religion trumping the governments’ attempts to promote the public’s health.
It is possible Judge Kennedy will win his current case, the Fifth Circuit will back Mack, and the Eleventh Circuit rule for the City of Ocala instead of the plaintiffs who did not want government prayer. Those would not be separationist opinions. Separation would be a better alternative. Is there a separationist on the Supreme Court? Justice Sotomayor defended separation of church and state in dissent in the Trinity funding case. Yet she also joined the dissent in Town of Greece. Note that in the principal dissent in Town of Greece, Justice Kagan opposed a “bright separationist line” against government-sponsored prayer. In the end, the majority and dissent in Greece were left arguing about what set of facts makes government prayer proper: purely Christian prayer, or prayer for everybody? Prayer by Christians was okay with the majority. The dissenters might allow a team of different religious chaplains to be spread over the season, forgetting that the person who shows up for government, or legislative or judicial business, hears only the religion of the day. Follow the facts wherever they lead. Kagan’s dissent was consistent with President Obama’s beliefs that religions could come to agree on public policy because of their religious beliefs.
I disagree. Prayer is always religious, and different religions and nonbelievers disagree about it. Prayers of one religion, or no religion, always vary from prayers of another religion. That is why the government should not sponsor prayer. Period. Business conduct by government employees counts as having Establishment Clause implications. The Establishment Clause does not allow the government to favor one religion over another, or religion over irreligion, as government prayer does. That’s why the government should not pray at any of its exercises. Period. Everybody can have religious freedom if the government is never praying. Everybody would be an insider, instead of a mix of outsiders and insiders, some included by the government and some excluded. It is too bad the courts have not been saying that no government religion protects the religion of everybody else. ♦
Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a PhD in Religious Studies from Yale University and a J.D. from Stanford Law School. The fifth edition of her casebook, Law and Religion: Cases and Materials, will be out soon.
Griffin, Leslie. “Prayer is Everywhere.” Canopy Forum, June 10, 2022. https://canopyforum.org/2022/06/10/prayer-is-everywhere/.