- Introduction: The Constitutional Challenge of Honoring Religious Voices in a Government Setting
Legislative prayer – the governmental act of allowing a prayer to be offered before the start of a legislative session – has been a tradition in the United States that predates its founding, Marsh v. Chambers, 463 U.S. 783, 786-88 (1983), and the act’s constitutionality is not in doubt.1 Nonetheless, it is a tradition that frequently creates conflict. The reason is straightforward: Americans are a diverse people with plural religious voices and we live under a Constitution that protects the ability of all religious voices to be heard. The First Amendment’s Establishment Clause ensures that no single religious voice will be amplified by government while the Free Exercise Clause ensures that no single religious voice will be muted by government. So we expect our government bodies to honor multiple religious voices and are rightly troubled when they appear to lift up only one voice.
Legislative prayer often appears to do just that. A legislative body that allows prayers that consistently invoke a single religious voice may be viewed as expressing a government preference for that voice over others. Likewise, a legislative body that allows only certain types of prayers or certain prayer givers to participate may be viewed as muting others’ religious voices. Moreover, the very act of a legislative body allowing prayer prior to official proceedings may appear to convey a government preference for religious voices over areligious ones. In these ways, legislative prayer stands in tension with the First Amendment’s protections for diverse religious expression.
- Joyner v. Forsyth County and the One-Voice Problem
The Fourth Circuit confronted this tension in the recent case of Joyner v. Forsyth County, 653 F.3d 341 (4th Cir. 2011). The Board of Commissioners of Forsyth County, North Carolina, had a legislative prayer policy that allowed religious leaders from any faith tradition to volunteer on a first-come, first-served basis to offer the opening prayer. Id. at 343. Religious leaders were invited to do so via correspondence that was sent to identifiable religious groups in the County. Id. The correspondence at issue instructed leaders that while they could offer a prayer consistent with the dictates of their conscience, they could not use the prayer as an opportunity to disparage another faith or engage in proselytization. Id. In addition, no one leader could offer a prayer at consecutive meetings or more than twice in a given year. Id.
While the list of religious leaders invited to give prayers encompassed a “broad array” of religious traditions (including Christian, Jewish, Islamic, Ba’hai Faith, and many more), id. at 357, the clear majority of all prayers offered over the course of the year were explicitly Christian, with almost four-fifths of all prayers referring to “Jesus,” “Jesus Christ,” “Christ,” or the “Savior,” id. at 344. Moreover, none of the prayers offered after the policy was adopted mentioned any non-Christian deity. Id. at 353. In short, even though in theory the policy at issue appeared to be neutral and open to multiple religious voices, in practice the legislative prayers appeared to express a preference for only the Christian voice. Id.
As the Fourth Circuit majority correctly observed, such government-sanctioned amplification of one religious voice amounted to government advancement of that voice to the exclusion of others, in violation of the Establishment Clause. Id. Judge Wilkinson, writing for the majority, explained, “‘[w]hatever else the Establishment Clause may mean . . . it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed.’” 2 The Establishment Clause is aimed at preventing this one-voice problem.
- The Fourth Circuit’s Solutions to the One-Voice Problem and Why They Fall Short
- The Nonsectarian-Voice Solution
To prevent the Board from giving preference to one sect (or at least appearing to do so) through legislative prayers, the Fourth Circuit ordered it to allow only nonsectarian prayers. Joyner at 347. In the Court’s view, this solution results in minimizing the risk of “sectarian strife,” which “rends communities and does violence to the pluralistic and inclusive values that are a defining feature of American public life.” Id.
Regrettably, this solution – while offered with the best of intentions – actually produces an anti-pluralistic and anti-inclusive result of its own, putting it at odds with the intent of the First Amendment. By compelling the Board to adopt a policy of nonsectarianism, the Court is actually compelling it to demonstrate a preference for those religious voices that shun religious particularism in the name of interfaith harmony (i.e., ecumenical and other inclusive voices) over those that embrace it (i.e., the majority of religious voices). The court admits as much when it extols the extent to which nonsectarian legislative prayers “encourage ecumenism among [their] participants.”3 Thus, the result of this nonsectarian solution is actually a perpetuation of the one-voice problem; the lone Christian voice is simply replaced by the lone nonsectarian voice.
Judge Niemeyer filed a strong dissent in Joyner, in which he rightly pointed out how government-enforced nonsectarianism failed to honor plural religious voices. He noted that “the way an individual refers to God and surely the way the individual prays to God are largely informed and influenced by the individual’s religious beliefs.” Id. at 365. Governmental attempts to steer prayer in a nonsectarian direction threatens to compromise the particularistic quality of these varied beliefs for the sake of promoting one nonsectarian belief set. As Judge Niemeyer explained:
Christians call on the Divine Being with the names God the Father, God the Son (Jesus), and God the Holy Spirit. Muslims have 99 names for God, but Allah is the supreme appellation. Yet the majority opinion now directs all religious leaders to forsake these names to accommodate some ‘civil,’ court-shaped religion.
Id. at 366. The nonsectarian solution has the effect of stifling the variety and distinctiveness of religious voices where the goal should be, instead, to “allow the prayers of each [religion] to be spoken in the religion’s own voice.” Id. at 367. Such a solution also forces legislatures and courts to distinguish those voices “that are ecumenical from those that are sectarian.” Id.at 365. This, Judge Niemeyer wrote, is a “nearly impossible” task and one “‘best left to theologians, not courts of law.’”4 Moreover, it is a task that the Establishment Clause surely does not require.5
- The Any-Voice Solution
The dissent’s solution, however, is equally unworkable. The dissent proposes that legislative bodies simply adopt a prayer policy that is neutral toward religious voices and not concern themselves with whether the policy, in practice, results in prayers offered predominantly (or even exclusively) by one voice or set of voices.6 Any religious voice can speak from the government podium, so the government cannot be accused of privileging one voice.
Unfortunately, the very facts of Joyner show why this any-voice solution fails to prevent the impression of government sectarianism. While the dissent is quick to point out that the Forsyth County Board of Commissioners did not appear to adopt its prayer policy with an eye toward advancing Christian voices, id. at 364, not all legislative bodies may be so noble; any student of history knows that neutral policies may often lead to (or even be designed to have) non-neutral effects.7 And the very commitment to religious neutrality may lead to results that are hostile to religious voices, contravening the intent of the First Amendment.8
- WWJMD? James Madison’s Solution to the One-Voice Problem
So what is the preferred solution under the First Amendment? How can legislative bodies avoid the appearance of sectarianism while also ensuring that the voice of any particular sect is not being muted or silenced? James Madison, the architect of the First Amendment, provides the solution in his very blueprint for government: many voices. Madison wrote in Federalist 51 that the best way to prevent government from lifting up only one voice is to create a government system that requires the input of multiple voices:
[I]n the federal republic of the United States . . . ., [w]hilst all authority . . . will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
James Madison, Federalist 51 (Rossiter ed. 1961). His model for this system of multiplicity? America’s religious pluralism:
In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.
Id. In essence, Madison viewed both civil and religious rights as being best protected from government encroachment when their immense diversity is secured. A government-backed “multiplicity of sects” is the best defense against the tyranny of one sect or none.
In the context of legislative prayer, ensuring that a “multiplicity of sects” can have their voices heard means ensuring that prayer polices are neither nonsectarian – which actively privileges one subset of religious voices – nor neutral – which fails to prevent the privileging of any one religious voice, one areligious voice, or no voice at all. In short, it means ensuring that prayer policies are polysectarian, designed in a way to actively include the voices of plural sects and those ascribing to no sect at all.9
The Fourth Circuit has implicitly acknowledged the value of this many-voice solution. In Simpson v. Chesterfield County Bd. of Supervisors, it wrote about the importance of “American pluralism” in matters of religion and the need to prevent the discouragement of the “diverse views on which our democracy depends.” 404 F.3d at 283. And in Joyner, the dissent rightly observed that Supreme Court precedent in the area of legislative prayer demonstrates a desire to “protect . . . the diverse prayers of a religiously pluralistic society, spoken in accordance with each religion.”10
This means doing more than adopting a policy that welcomes diverse religious voices only in theory, as the Joyner dissent advocates, and it means doing less than adopting a policy that strips those voices of the distinctiveness that makes them diverse, as the Joyner majority advocates. It means adopting instead a policy that shows citizens that their government is committed to preventing any one religious voice from predominating by ensuring that multiple, diverse voices flourish.
- Conclusion: Religious Multiplicity as the Safeguard of Religious Liberty
The Joyner majority expressed a desire that “citizens should come to public meetings confident in the assurance that government plays no favorites in matters of faith but welcomes the participation of all.” 653 F.3d at 355. For this to occur, those citizens must see – in the way the prayer policy is carried out – the meaningful participation of multiple religious voices. This may mean exposing citizens to particularistic expressions of religion that they do not favor; as the Fourth Circuit acknowledged in Joyner, however “citizens in a robust democracy should expect to hear all manner of things that they do not like.” Id. at 354. And what makes a democracy robust is the very ability of its people to give voice to “all manner of things.”
As James Madison stated, “[f]reedom arises from the multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any society.” William Lee Miller, THE BUSINESS OF MAY NEXT: JAMES MADISON AND THE FOUNDING 13 (1994). The First Amendment protects that freedom through preventing the government from establishing one official sect and preventing it from limiting a person’s exercise of their own sect. To the extent that our government allows legislative prayers, it should protect the freedom of those prayers in the same way.
1. Id. at 792 (“In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.”); see also Wynne v. Town of Great Falls, 376 F.3d 292, 298 (4th Cir. 2004).
2. Id. at 347 (quoting County of Alleghany v. ACLU, 492 U.S. 573, 605 (1989)); see also Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”)
3. Id.; see id. at 347-48 (describing the legislative prayers upheld by the Supreme Court in Marsh v. Chambers as constitutionally permissible because they made “efforts at ecumenism”).
4. Id. (quoting Pelphrey v. Cobb County, 547 F.3d 1263, 1267 (11th Cir. 2008)). For an example of how such a solution leads to anti-pluralistic results, see Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276, 280 (4th Cir. 2005) (in an opinion by Judge Wilkinson, upholding county board’s prayer policy even though it operated to exclude the voice of a Wiccan on the ground that her voice was insufficiently nonsectarian); id. at 284 (noting with approval the “ecumenism” embodied in the board’s legislative prayer practice).
5. See id. (“The Establishment Clause surely does not require legislative bodies to undertake the impossible task of monitoring and prescribing appropriate legislative prayers for religious leaders to offer as invocations. And it does not require that legislative bodies demand that religious leaders only offer nonsectarian prayers.”).
6. Id. at 363 (finding no problem with the fact that “most of the prayers offered were in fact Christian prayers” because “the nature of the prayer was not determined by the County or by any policy the County adopted or implemented”).
7. As the majority writes: “What the dissent offers as a defense of the policy, however, is one of the problems with it. Take-all-comers policies that do not discourage sectarian prayer will inevitably favor the majoritarian faith in the community at the expense of religious minorities living therein.” Id. at 354.
8. See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305-06 (1963) (Goldberg, J., concurring) (“[U]ntutored devotion to the concept of [religious] neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it.”).
9. Two examples of a polysectarian legislative prayer policy are: (1) a policy in which multiple, diverse religious leaders (including areligious leaders) are invited to perform a prayer/invocation at legislative meetings, with one leader performing the prayer/invocation at each meeting but with the policy of multiplicity explained to those in attendance before the prayer/invocation is given; and (2) a policy in which multiple, diverse religious leaders (including areligious leaders) are invited to perform a prayer/invocation at legislative meetings, with at least two leaders of separate traditions offering their distinct voices at each meeting.
10. 653 F.3d at 366-67 (emphasis omitted); see McCreary County v. ACLU, 545 U.S. 844, 882 (2005)(O’Connor, J., concurring) (“Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.”).