In the United States, separation of church and state is the law of the land. Yet it seems that every government body, from the U.S. Congress down to a municipal water and sewer authority, opens its deliberations with a prayer. How can this be?
The answer goes back to a phenomenon called “civil religion” – the tendency of government to promote generic forms of religiosity to serve the state’s ends – and a 1983 Supreme Court decision that fostered it.
The case, Marsh v. Chambers, challenged Nebraska’s practice of using public funds to pay a chaplain to open the deliberations of its unicameral legislature. Interestingly, the lawsuit was brought by Ernest Chambers, a member of the legislature.
It looked like Chambers had an open-and-shut case. The government was using tax funds to pay someone to pray – an obvious violation of the Supreme Court’s own standards, which insist that laws must have a secular purpose and not advance religion.
The 8th U.S. Circuit Court of Appeals agreed, but on appeal the Supreme Court, ruling 6-3, reversed. The high court did not try to reconcile the decision with its previous rulings striking down government entanglement with religion. Instead, it carved out an exemption for legislative chaplains, asserting that they have a long history in America.
“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country,” wrote Chief Justice Warren Burger for the majority. “From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”
Burger argued that the same Congress that adopted the Bill of Rights appointed chaplains in the House of Representatives and Senate.
“Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress,” he wrote.
Leading the dissenters, Justice William Brennan was unimpressed by arguments about what the first Congress did.
“Legislators, influenced by the passions and exigencies of the moment, the pressure of constituents and colleagues, and the press of business, do not always pass sober constitutional judgment on every piece of legislation they enact, and this must be assumed to be as true of the Members of the First Congress as any other,” he wrote.
Noting the many different and deeply held approaches to prayer within the American religious community, Brennan observed, “Prayer is serious business – serious theological business – and it is not a mere ‘acknowledgment of beliefs widely held among the people of this country’ for the State to immerse itself in that business…. [I]t is simply beyond the competence of government, and inconsistent with our conceptions of liberty, for the State to take upon itself the role of ecclesiastical arbiter.”
Brennan went on to point out that James Madison, lead author of the Bill of Rights and considered the father of the Constitution, later expressed his belief that chaplains in Congress are unconstitutional.
Madison’s comments came in an essay scholars call “The Detached Memoranda.” 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 not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?”
Since Marsh, scholars have also pointed out that the same Congress that approved the Bill of Rights, with its guarantee of a free press, also passed the Sedition Act, flagrantly unconstitutional legislation that punished newspaper editors for printing “scandalous and malicious” statements about the government.
In fact, there was plenty of sentiment at the time of the founding that government should not presume to meddle in religion. As president, Thomas Jefferson refused to issue proclamations calling for days of fasting and prayer. Jefferson argued that his job was to run the government, not interfere in people’s religious lives. Madison approved a few of these resolutions but later concluded that his actions were not in keeping with the First Amendment.
In the early 20th century, it became more common to talk about the nation’s “Judeo-Christian” heritage. This was often expressed in generically religious terms. “Under God” was slipped into the Pledge of Allegiance in 1954, and “In God We Trust” was mandated for currency in 1956.
Civil religion reached its apex during the presidency of Dwight D. Eisenhower. The assumption was that religion was good for society and that only faith could guarantee proper behavior (as well as ward off “godless Communism”). The spirit of the times is perhaps best summed up in a famous Eisenhower quote: “[O]ur form of government makes no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.”
Today some argue that these rules no longer make sense. It seems hardly fitting to refer to modern-day America, which includes Muslims, Buddhists, Hindus, non-believers and others, as “Judeo-Christian.” In addition, “non-sectarian” prayers don’t just offend the non-religious. Many devout believers find them watered down to the point of useless.
Beneath the surface lurks another uncomfortable question: Does civil religion allow lawmakers to subvert faith by permitting them to assume a veil of piety? If so, it would be nothing new. Speaking of religion in ancient Rome, historian Edward Gibbon once observed, “The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.”
Congress, a cynic like Gibbon might note, has been listening to chaplains praying for more than 200 years now – yet political scandals and partisan sniping are as common as ever.
In Nebraska, Chambers made the same point back in 1983. When the high court’s decision came down, Chambers told Church & State one reason he challenged the legislative prayers was hypocrisy. He was weary of watching political leaders rush through a prayer and then engage in “all of the lying and back-stabbing” that marked political discourse. (Chambers is still in the Nebraska legislature. Currently its longest-serving member, he is known for his colorful style and habit of wearing t-shirts to legislative sessions. Next year, he will be forced to give up his North Omaha seat due to term limits.)
The chaplain of the U.S. House of Representatives is paid $163,700 per year, and the Senate chaplain makes $141,600. Defenders of congressional chaplains often argue that a daily prayer helps set a moral tone for that body. Given the long record of scandals in both chambers and the highly corrosive partisan atmosphere that has plagued Washington lately, perhaps the constitutional question is not the best one to raise. A more compelling one might be: Are we getting our money’s worth?