Perhaps nowhere in our Constitutional landscape is the terrain more rocky than the chasm between the establishment clause and broader issue of free speech. The First Amendment to the U.S. Constitution begins with the phrase "Congress shall make no law respecting an establishment of religion..." This phrase is referred to as the establishment clause. The essential intent of this phrase is to prevent the "establishment" of a state religion.
Perhaps nowhere in our Constitutional landscape is the terrain more rocky than the chasm between the establishment clause and broader issue of free speech. The First Amendment to the U.S. Constitution begins with the phrase “Congress shall make no law respecting an establishment of religion…” This phrase is referred to as the establishment clause. The essential intent of this phrase is to prevent the “establishment” of a state religion.
Many would hold that the freedom to make unfettered religious speech is sacrosanct under all circumstances. As we live under a Constitution that expressly forbids the state sanctioning of any particular religious tradition, we also have the right to stop listening to those professions and perhaps more importantly — not to be forced to endure them as a prerequisite for access to government.
These sentiments were reinforced recently when the U. S. Supreme Court let stand a ruling from the U.S. Court of Appeals for the Fourth Circuit finding that the Forsyth County, North Carolina, Board of Commissioners violated the Establishment Clause of the First Amendment by opening public meetings with sectarian prayer.
As noted by the Appellate court, the Board of Commissioners routinely began its meeting with an invocation that included the phrase, “For we do make this prayer in Your Son Jesus’ name, Amen.” Similarly sponsored prayers made references to specific tenets of Christianity, from “the Cross of Calvary” to the “Virgin Birth” to the “Gospel of the Lord Jesus Christ.” As stated in the Appeals court decision, authored by Judge Harvie Wilkerson III, a Reagan appointee, “Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment’s religion clauses.”
The current — arguably conservative-dominated — U. S. Supreme Court agrees with Wilkinson.
Critics of this decision will doubtless remind us that the United States is a nation in which the majority of citizens identify themselves as Christians. By their logic, it is no trespass against another person’s liberty to force the non-believer deep into the current of their religious beliefs. If for no other reason than the non-believer’s “own good” it is correct that they should be made to bear it.
The ancient Greeks termed this kind of government by passions of the mob an “ochlocracy.”
Likewise, Alexis de Tocqueville warns against “the tyranny of the majority.” So too does Madison in Federalist No. 10, “…that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
We could make a long list of studied people who fear such tyranny. Good Christian soldiers, patriots and atheists alike understand that the moral certainty of a numerical majority does not always trump the rights of the minority. What makes the Forsythe County case particularly interesting to me is that religious leaders from the community routinely delivered the invocation. In my own hometown, it is common for sitting members of the city council (who are also clergymen) to deliver the invocation. To my mind, this is an important distinction because the defendants (the Forsythe County government) based part of their defense on that semantic separation. Unable to cloak themselves in this distinction without a difference, I wonder how my own city government would fare were their practices to be challenged.
Beyond that, I have been present when a prayer was offered “in Jesus’ name” while individuals I know to be Jews, Muslims and even a couple of agnostics were present. Perhaps these prayers gave the “non-believers” no offense. Maybe they’re just “used to it.” Whatever the situation, I am positive no one ever bothered to ask. But having to ask skirts the issue. As Wilkinson properly observed, prayers must not serve as the gateway to participation in government, no matter to whom or what the prayers are offered. To the extent that they do, they are an affront to the Constitution.
• • •
Matthew Pate, a Pine Bluff native who holds a doctoral degree in criminal justice, is a senior research fellow with the Violence Research Group at the University at Albany. He may be contacted via firstname.lastname@example.org