7/19/2009—Tom Barnes of the Pittsburgh Post-Gazette reported in today’s paper on a three week controversy in the Pennsylvania legislature over a Christian minister who was prevented from using Jesus name in a legislative prayer opening a session. Some thoughts follow.
First, what is the current law on legislative prayer? There are basically two judicial approaches. As one example, President Obama’s first judicial nominee, Judge David Hamilton, who was chosen to fill a vacant seat on the U.S. Court of Appeals for the 7th Circuit, based in Chicago, struck down the legislative practice in the Indiana legislature as a federal district judge because the prayers were not nonsectarian. His order, as I remember, was that no nonsectarian prayer be permitted. The other approach, again without refreshing my research, is to look at the legislative prayer practice as a whole, and allow all kinds of prayers as long as the overall thrust is nonsectarian. In the first approach, the decision to bar the Jesus prayer is required by the Establishment Clause; in the second, not necessarily.
Second, what about the charge of censorship? Here, the law is incoherent. The Supreme Court has sometimes written as if speech by students in public schools at school events is private speech. On the other hand, legislative prayer, like high school graduation prayers, is apparently regarded as government speech and hence there would be no private first amendment right in a minister to deliver his or her own prayer without government interference. Legislative prayer seems to be the government speaking.
My approach to all this, the higher law approach, which I will be introducing at the netroots nation convention in Pittsburgh in a few weeks, would be to regard all legislative prayers as invocations of higher law principles. The legislature would have to open these prayers up to nonreligious messages too. But the question would be the overall thrust, not each individual prayer. Not all prayers could be religious in nature, but some could be sectarian.
Nonsectarianism is just a half-way house as we try to figure out what the Establishment Clause means. Ultimately, the category of nonsectarianism is empty. No “prayer” or meditation fails to endorse one particular world-view, even if that world-view is the theory of higher law, or objective value, against relativism. It makes much more sense to ask whether legislative prayers are open as a whole to religious and nonreligious messages. No one prayer can be judged that way.