Obama Administration Backs Legislative Prayer in Amicus Brief

There’s a Supreme Court case that will be heard this October involving prayer at government meetings and I plan to post something far more thorough about it very soon.

But one update really needs to be mentioned now. The Obama administration, on Thursday, weighed in on the case with an amicus brief (PDF), intended to urge the Supreme Court to act in a certain way.

The brief says very clearly that the administration, led by Solicitor General Don Verrilli, is on the side of allowing invocation prayers:

The Obama Administration says they’re fine with invocation prayers containing these phrases.

Where, as here, legislative prayers neither proselytize nor denigrate any faith, the inclusion of Christian references alone does not constitute an impermissible advancement or establishment of religion. So long as the goal of the government-backed prayer is not to recruit believers or criticize a given faith then the practice should be supported. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.

The history of prayers offered in connection with legislative deliberation in this country makes clear that a legislative body need not affirmatively solicit court-mandated variety of different religious faiths — from inside and outside of the borders governed by the legislative body — in order to avoid running afoul of the Establishment Clause. As noted, the United States House of Representatives and Senate have a long and virtually unbroken tradition of employing official chaplains. Every House and Senate Chaplain has belonged to a Christian sect, a fact of which this Court was well aware when it decided [previous legislative prayer case] Marsh.

In short, the administration is saying that Christian prayers, as long as they’re not *intended* to proselytize, are totally fine at government meetings… even if the only kind of prayers we ever hear are Christian prayers.

It really makes no sense. It shows a tremendous lack of respect for religious freedom in this country. It’s dismissive of everyone who’s not a Christian for the sake of keeping with tradition.

The Center For Inquiry’s Michael De Dora also argues against this line of thinking:

Yet there is no reason why tradition by itself — either in practice or opinion — should justify a governmental practice. Many governmental practices were popular at the founding of this country. Some of them were good; some were bad. Why should we be forced to keep any of them simply because they originate at our founding?

Taking the neutrality approach to legislative prayer, there are three alternatives to the current situation:

1) Prayers and invocations can be offered, but all religious and non-religious backgrounds must be treated fairly and represented equally.

2) There ought to be a general moment of silence before the start of a legislative session, allowing each person to reflect as he or she wishes.

3) There should be no prayers or invocations; lawmakers can pray in private before legislative sessions.

The most reasonable options given the current social and political landscape in the U.S. are probably the second and third options. There are serious practical issues with the first option…

Anyway, like I said, I’ll be posting a much more thorough breakdown of this case in the coming week, but this is a significant, disappointing development in the case. You would hope for better from an administration with a Constitutional scholar at the helm.

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.

  • the moother


  • http://atheistlutheran.blogspot.com/ MargueriteF

    Disappointing. I still remember some years ago when a Wiccan wanted to offer an invocation at a Chesterfield County (VA) council meeting, and council members were quoted as poking fun at her, saying things like, “I hope she’s a good witch like Glinda” and calling Wicca a “mockery.” In an appeal to the Supreme Court (which was rejected) it was claimed that “the county issues invitations to deliver prayers to all Christian, Muslim, and Jewish religious leaders in the county, but refuses to invite Native Americans, Hindus, Buddhists, Sikhs, and Wiccans.” This is the problem with #1– there is a tendency to assume some religions are “real” or significant enough to matter, and some aren’t. I really think #3 is the way to go. Invocations before meetings are not only unnecessarily divisive, but a waste of time.

  • Librepensadora

    Yes, we all expected better of a Democratic administration than to pander to the most extreme faction of the Republicans. What is good about having “the heart of David”? As king, he committed adultery with the wife of one of his soldiers, then gave orders for her husband to be put in the front lines. This was centuries after those “Ten Commandments” had been handed down.

  • LesterBallard

    Okay. So let’s have people offer Muslim prayers, Hindu prayers, Pagan prayers, everything, and see how the fuck it goes over. Because when fundie Christians talk about freedom of religion, they mean their religion.

  • Free

    These prayers have always been an historic part and practice of… They are deemed constitutional. Of course if other religious people in the same positions want to have a voice then they should have equal opportunity.

    Motions have been passed to reverse a lower court decision that forbade the Town of Greece, New
    York, from starting council meetings with prayers led by a volunteer
    member of the public. Volunteers hail from many different religious
    traditions, including Christian, Jewish, Bahá’í, and Wiccan. The motion asks the Supreme Court both to uphold the ubiquitous
    practice of legislative prayer and to repair Establishment Clause law by
    bringing it back to its origins in the Bill of Rights. According to the
    brief, the Founders did not see legislative prayer as a forbidden
    “establishment of religion” because it did not share the features of an
    established state church such as the Church of England.

    The brief states that the Founders understood an establishment of
    religion to consist of four key elements: (1) government financial
    support of the church, (2) government control of the doctrine and
    personnel of the church, (3) government coercion of religious beliefs
    and practices, and (4) government assignment of important civil
    functions to the church – all linked by an underlying concern about
    state coercion to participate in religious activity. The brief argues
    that because legislative-prayer does not fall within any of these
    categories, it is not an establishment of religion.

    Notice the brief states different religions having a voice in the pre legislative events. Please exercise your constitutional privilege and lets stop the fussing. The prayers are constitutional and everyone has a chance – step up.

  • Free

    Read the brief and encourage others to raise their voice.

  • http://www.last.fm/user/m6wg4bxw m6wg4bxw

    There ought to be a general moment of silence before the start of a legislative session, allowing each person to reflect as he or she wishes.

    The only circumstances related to religion in which I valued and needed a moment of silence have been when religious people won’t shut the fuck up about how important their religion is to everyone.

  • DougI

    It’s a shame it’s not possible to revoke his credentials as a Constitutional scholars as well as his Nobel Prize.

  • Chewy

    It is really sickening. I’m sadly coming to the conclusion that a 40-year updated Richard Nixon would have been a better president, except for the racial achievement.

  • HollowGolem

    He’s not pandering to the Republicans. A lot of the Democratic base is exceptionally religious as well (especially poor urban voters, who are very blue).

    The irreligious are more likely to be politically independent than the religious, and certainly more likely to be liberal, but liberals are still largely religious people, despite our bloc within their midst.

  • calesuar

    No matter how innocent, benign or moderate it’s still religion: ideas based on ignorance, imaginary beings that man makes up. We need to keep that kind of stupidity separate from The State where real laws that affects us ALL are drawn. Keep the imaginary crap where it belongs, at church.

  • Willy Occam

    Let’s go with #3, please. These clowns are getting paid (a LOT) to get things done on behalf of the citizens of this country, and shouldn’t be wasting time talking to imaginary friends.

  • http://www.youtube.com/user/GodVlogger?feature=mhee GodVlogger (on YouTube)

    They are so blind to their own religious special privileges that they don’t even realize that their own rationale shows their lopsided/biased system.

    Example: “So long as the goal of the government-backed prayer is not to recruit
    believers or criticize a given faith then the practice should be

    No! Here they are saying that government prayer is allowed to favorably highlight the beliefs of a given faith, but they can NOT criticize (speak unfavorably about) a given faith!

    Where is the free speech in that?

    Speakers are allowed to use that opportunity to give only one viewpoint on faith, i.e. a favorable one.

    The government is suppressing free speech.

  • jdm8

    I think the heckling from the religious right has something to do with it. Only after the heckling from Fox News, etc, the Dem leadership steamrolled God into the platform, basically did a “revote” at the convention like three times, still didn’t get the result they wanted, and declared it approved anyway.

  • jdm8

    “Notice the brief states different religions having a voice in the pre legislative events. Please exercise your constitutional privilege and lets stop the fussing. The prayers are constitutional and everyone has a chance – step up.”

    An atheist prayer is… what then?

    This really doesn’t pass much muster, because when a humanist… invocation (? – doesn’t really make sense anyway) is made, some Christian zealot feels compelled takes it apon himself to follow it up right away with a Christian prayer anyway. Then it starts being petty and stupid, and clearly a wish to impose their religion onto the legislative body.

  • Jim Hudlow

    I have found that the word “tradition” as applied in a religious context nearly aways means “we know this is technically illegal or unconstitutional but we have gotten away with it for so long that it should be exempt from the law or indeed any scrutiny at all”. Whenever I hear the word ‘tradition’ my bullshit needle immediately whips over into the red zone. This is such an obvious flaunt of our Constitution in this case, alienating a LOT of people and groups who are not xtian. On the other hand at least Obama is finally being transparent on an issue….thank god eh?

  • Mitch

    Our FSM, who art in noodly paradise. Thy noodly appendages come, thy will be done, on earth as it is in noodly paradise. Give us today our daily linguine, and forgive us our plundered booty, as we forgive those who have plundered against us. And lead us not into non-piracy, but deliver us from evil. For thine is the strainer, and the tomato-based sauces, and the artisan Parmesan cheeses, forever and ever. R’amen.

  • wygrif

    These prayers … are deemed constitutional. [citation needed]

  • Edmond

    I think it’s ridiculous that anyone thinks that this is about religion at all. Just look at our legislators… fighting, debating, drafting laws so they can legally WASTE TIME before meetings. Get to work, dammit! This wastefulness goes on daily, at tens of thousands of government and civic functions across the nation. What an embarrassment! How many man-hours are wasted annually on rituals and frigging SILENCE? Do the bloody jobs you were elected to do. Begin at 8 am. Begin! Not, pause for pious grandstanding. Have things you think need doing before the meeting? Then DO them, BEFORE the meeting! Don’t you have an office? Do you have to shangai the whole system while absolutely nothing gets done, but you’re sure as hell getting paid? And yeah, there ARE people among you who don’t want to stop what they’re doing for YOUR bloody favorite religoius practices. But as bad as that is, and should be addressed, that isn’t really the point. I wouldn’t care if you had a tradition of having a moment of nose-picking and pulse-taking, that isn’t DOING YOUR JOB. Schedule these silly rituals for a time that doesn’t disrupt the vital process that our country depends upon. Eff! I think this is an outrage.

  • new_atheist

    If someone could explain this to me, that would be great. But, I can’t for the life of me figure out the difference between prayer in schools and prayer at Government meetings. The Supreme Court has already agreed that having prayers over the loud speaker during morning announcements, or that prayer led in the classroom is a violation of the establishment clause, and is not permitted.

    Why should Government meetings be any different?

  • rwlawoffice

    I was surprised to see the Obama administration take this view. For once I have something to agree with them on. The policy in this county was to open up the invocation to all religions and it was neutral. The court of appeals, did not care that the policy was neutral, it complained about that the majority of those that utilized the policy were Christians. So in essence, the court of appeals was saying that even if a neutral government policy is utilized more by Christians because they are the majority of the populace, this policy cannot be allowed. It is censoring the free speech of individual citizens despite the neutral nature of the government policy. In my opinion the S. Ct took this up to reverse the court of appeals and clarify the policy on government invocations.

  • LutherW

    Like the tradition on not having Under God in the pledge, The tradition of slavery. Only white landholding males voting…

  • Jim Hudlow

    Luther…just the beginning of a very long list ….E Pluribus Unum!

  • Jim Hudlow

    I just finished reading the King James version of the bible (Skeptics Annotated Bible) and guess what~~~your example isn’t the only one….and it is far from the worst one! Took me 9 months to read it but at least now I can say what most xtians cannot truthfully say and that is that I have read the damn thing cover to cover. How they got a religion out of that “sloppy mess of crazy” (as my friend Sean calls it) I will never understand!

  • Jim Hudlow

    rw…you have a very strange definition of ‘neutral’.
    of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687
    (1994), Justice David Souter, writing for the majority, concluded that “government should
    not prefer one religion to another, or religion to irreligion.”).
    The term ‘establish’ in the First Amendment means ‘to cause to be accepted’. It is not just about establishing a national church. Our government cannot cause to be accepted any religion, sect of religion or irreligion. It must remain neutral in all matters concerning religion to be fair to all citizens of this country. This brief excludes any portion of our society that does not believe in anything supernatural. And to say it does not intimidate and push other than the monotheisitic religions of abraham to the back of the bus is just poking your head in the sand. Religion does not belong in the decision processes of governing in the United States of America. Beginning any governmental process or meeting with an innvocation makes that process immediately exclusionary and divisive.

  • Philbert
  • stop2wonder

    Anyone care to put odds on this one? I’m not as confident in this one breaking our way as I was with the DOMA case.

  • wygrif

    Nice try, but Marsh v. Chambers precedes the endorsement test and is therefore not dispositive

  • http://VinumVita.com Terrence Jones

    I am very disappointed in Obama over this. There is no right for the majority religion to espouse their beliefs during an official government meeting.

    Consider signing the petition asking Obama to withdraw this support of this at We The People: http://wh.gov/lgjSy