Judge Suggests Judicial Review of Prayer
The US Court of Appeals for the DC circuit recently dismissed the case of Newdow v Roberts. The suit had sought to make “so help me God” in the inaugural oath illegal, as well as restrict inaugural prayer. Newdow may be a familiar name, as he has filed many lawsuits claiming references to God in government are unConstitutional.
The ruling is largely procedural; the three-judge panel of the 11 member court said the plaintiffs did not have standing to sue. However, the concurring opinion by judge Brett Kavanaugh actually addressed the merits of the case, and it is an interesting insight into religion in government. It also contains some troubling commentary, which directly relates to the military.
Kavanaugh said the plaintiffs did have standing, but their suit failed on the merits in accordance with Supreme Court precedence. According to Kavanaugh, that precedence favors
allowing government-sponsored religious speech or prayer at a public event where prayers have traditionally occurred, at least so long as the prayers are not proselytizing (seeking to convert) or otherwise exploitative.
Regrettably, this requires the courts to subjectively address the content of the prayer, weighing (by some standard) its supposed theological intent and motivation.
Kavanaugh based his assessment on a statement from Marsh v Chambers (see cases here), which he quotes:
The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.
Unfortunately, Kavanaugh concludes inaugural prayers have not exploited, advanced, or disparaged, yet he still parses the prayers. In addition, Kavanaugh (somewhat ironically) simultaneously discusses “permissible sectarian” content and the “thoughtful” admonition that judges cannot become “ecclesiastical arbiters.”
The more nuanced issue, therefore, is how courts should distinguish permissible sectarian references from impermissible sectarian references in determining under Marsh whether a “prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” As Judge Pryor explained in his thoughtful opinion for the Eleventh Circuit, courts must approach that difficult task with sensitivity lest they become “ecclesiastical arbiter[s].”
He solves this problem by quoting another district court ruling (Snyder v Murray City, 1998) saying
the kind of  prayer that will run afoul of the Constitution is one that proselytizes a particular religious tenet or belief, or that aggressively advocates a specific religious creed, or that derogates another religious faith or doctrine.
Read that carefully. “The kind of prayer that will run afoul of the Constitution…” An appeals court judge has said, and another is saying, that prayers of specific content, when spoken by members of the state or those whom the state invites, violate the Constitution. Thus, the judges do establish themselves as theological “arbiters,” determining what religious adherents may say in their prayers and still be permitted to say them. The descriptors themselves are vague and subjective. What distinguishes an acceptable level of “advocacy” from “aggressive” advocacy?
In his conclusion, Kavanaugh specifically provides judicial review for prayer and parses previous inaugural invocations:
Review of the modern Inaugural prayers yields no indication that this admittedly imprecise…principle is being breached. Inaugural prayers are traditionally inclusive and largely non-sectarian. They typically include many references to God, Lord, and the like, which are considered non-sectarian for these purposes. The sectarian references in Inaugural prayers tend to be limited in number, as was the case at the 2009 Inauguration for example. In short, it cannot be said for purposes of Marsh that the Presidential Inauguration is being “exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
Kavanaugh thus defends the prior oaths and prayers as ‘satisfactory’ — not because they were an expression of a basic freedom or human right, nor because of a Constitutional restriction against government entanglement with religious expression. Instead, they were acceptable because they met the subjective standards of judicial review. In so doing, he supports a legal framework for what can and cannot be said during a prayer by a government official. Future inaugural prayers can be challenged for “breaching” this judicial prayer review by being insufficiently “inclusive [or] non-sectarian,” making references to faith-specific deities, or by quantity of those references — the standards Kavanaugh applied to his analysis.
Realize, too, the breadth of this assertion. If a government official cannot publicly pray a prayer that appears to “advance” or “disparage” a faith, it must then also be impermissible for him to make mere statements to that effect. That is, could the President say “as Christians, we believe that redemption can be delivered by faith in Jesus Christ?” It certainly is not inclusive, is sectarian, and uses the names of faith-specific deities.
Kavanaugh’s statements are not far from the current governmental culture. The American government is increasingly sensitive to issues of religion, in some cases seemingly afraid any association of religion is an unConstitutional “establishment” of religion. This “fear,” however, is misplaced.
The First Amendment to the US Constitution says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…
An American citizen praying in public — regardless whether they hold state office or were invited by someone who does — is not an act of Congress making a law “respecting an establishment of religion.”
Under the protections provided by the US Constitution, any American of any ideology, whether in office or an invitee, can publicly espouse the tenets of their beliefs. A Christian can unabashedly say Jesus is the only way to God. A Muslim can say Muhammad’s revelation is the only incorrupt one. Many would even say that freedom of “religion” allows an atheist to say reason is the supreme form of revelation.
Might those views be offensive to some? Absolutely. Freedom naturally results in offense. But merely stating those views does not “establish” a religion (or non-religion). A free society relies not on state suppression of ideas, but on the encouraged competition of ideas, to ensure that truth prevails.
The Constitution does not cite a right not to be offended. It only asserts the American government may not establish a religion, nor may it prevent the free exercise of religion. Such protection of human liberty (remember, the Constitution does not grant rights, it merely restricts the government from impinging upon them) naturally results in an environment in which people will be offended. That is not a cost of freedom, it’s a result of it.
Under the Constitution, the government has no place theologically parsing prayers or deciding which are acceptable and which are not, based on the particular belief system espoused. This religious “test,” establishing what is and is not permissible sectarian conduct, was the very “establishment” the First Amendment was meant to prohibit. Contrary to hypersensitive belief, the US Constitution does not restrict state actors, nor citizens invited on their behalf, from praying in public, even while they are associated with their official position.
This is true whether the “state actor” is the US President, or a member of the US military.
As noted at the Religion Clause.