Oral argument last week in the legislative prayer case, Town of Greece v. Galloway, produced just the kind of confused meandering by the Justices that both the critics and supporters of legislative prayer have long criticized. Legislative prayer is the practice of opening various kinds of governmental meetings and activities with a prayer of some kind. Legislative prayer varies from the entirely pro forma incantation of the Supreme Court -- "God save the United States and this honorable court" -- to more formal prayers offered by rotating members of the clergy.
The problem is, of course, that such prayers seem an obvious affront to the governmental neutrality toward religion that Supreme Court precedent interpreting the Establishment Clause of the first amendment requires. When the practice of legislative prayer was upheld by the Supreme Court in Marsh v. Chambers in 1983, no real justification was offered by Chief Justice Burger's majority opinion other than that legislative had always been the American practice. In contrast when another, and similarly widespread, prayer practice was challenged in 1992, the Court struck down prayer at high school graduations as coercive in Lee v. Weisman.
This uncertain heritage gives no guidance as to what is permissible in legislative prayer and what is not. The Town of Greece in upstate New York has been opening the meetings of its governing board with a prayer since 1999. Until 2007, when the practice was challenged, the prayer had been offered exclusively by Christians.
Lawyers for the plaintiffs argued that nonsectarian prayers are permissible, but that invocations of Christ, for example, should not be allowed. This position satisfies no one. On one side, the principle of government neutrality toward religion is just as violated by the invocation of God as it is by the invocation of Christ. Not only is all such prayer an affront to nonbelievers, but no possible prayer includes even all religious believers. On the other side, the idea that government could enforce standardization of prayer on clergy is exactly the kind of affront to religious liberty that the first amendment is supposed to prevent.
But the defenders of legislative prayer fared no better. The historical justification of the practice can be looked at as just an "aberration," as Justice Kennedy pointed out. Justice Scalia's suggestion that the clergy offering prayers are just private citizens exercising their right to free exercise of religion invites the question why the government invites them to do so on a public occasion? That private prayer approach must logically lead to the declaration that the opening of a legislative session is a kind of open forum, like a public park, in which anyone can say anything. Obviously that is not going to work.
The other justification offered was that no one is coerced to join in the legislative prayer, which may be true but is still an affront to the fundamental principle of no establishment of religion. Under the rule of no coercion, it would be acceptable for Congress formally to declare that the United States is a Christian nation, which even Justice Scalia knows would be unconstitutional.
All of this confusion leads to calls for the simple abolition of the practice of legislative prayer. But this solution confronts the judicial reality that the votes to do that at the Supreme Court level are just not there and the political reality that legislative prayer is really quite popular and in most places people would strongly oppose its abolition. And that political fact of life should lead to the bigger question as to just why legislative prayer has this hold on popular imagination? Most people, after all, do accept the separation of church and state and would agree that governmental bodies as a rule must be open and inviting to everybody. So why do so many Americans insist on legislative prayer?
I believe the deeper meaning of the practice of legislative prayer is the feeling that it is good to be reminded of broader themes, such as the common good, or even right and wrong, before we engage in the often sullied business of partisan politics. In other words, legislative prayer is an occasion to be called "by the better angels of our nature" as Abraham Lincoln put it.
There is a real danger in forgetting this need. We must always remember that when Nietzsche announced the death of God in 1882 in The Gay Science, he was announcing the advent of nihilism. The death of God did not just mean the unbelievability of organized religion, but the meaninglessness of all appeals to the good or to the true or to the beautiful. Nietzsche was not pointing to some tolerant era of pluralism of beliefs. For him, the only reality that remained was the will to power.
Legislative prayer represents the popular, though unarticulated, hope that Nietzsche's insight might not prove to be the last word. It is a reaffirmation that there really is a common good that government can serve, beyond mere interest group politics. Despite what economists say, government can be more than just a fight over the division of spoils, politics more than just pigs at the trough.
As I argued in my book, Church, State and the Crisis in American Secularism, the opposition to nihilism is what gives potential coherence to practices like legislative prayer. Yes, the opening of legislative bodies cannot endorse only God and organized religion. That is rightly seen as a violation of the Establishment Clause. But, no, that space is not an open forum either. Instead, the opening of legislative sessions is a public arena in which the commitment to the reality of our ideals can be affirmed in a variety of forms. Some of those forms will be recognizably religious and others will be secular and atheistic. But all of them will affirm that there is such a thing as right and wrong and that our legislators must always keep the good of all in view.