Skip to content
Catholic Online Logo

By Keith A. Fournier

5/22/2013 (1 year ago)

Catholic Online (www.catholic.org)

When prayer is engaged in at the beginning of legislative sessions will we soon have to submit it to obtain the approval of the State censors in black robes?

The case out of New York presents an opportunity for the US Supreme Court to bring needed clarity to Establishment Clause jurisprudence. I hope they do so. We have witnessed a growing governmental hostility toward religious faith and expression in the public square. It does not serve the common good, runs contrary to our founding documents, and is unfaithful to our history as a free people. It is an improper application of the Establishment Clause, found in the First Amendment to the Bill of Rights of the United States Constitution. It is a form of religious censorship which threatens our first freedom.

US Supreme Court

US Supreme Court

Highlights

By Keith A. Fournier

Catholic Online (www.catholic.org)

5/22/2013 (1 year ago)

Published in U.S.

Keywords: Establishment Clause, Free Exercise Clause, Religious Freedom, public prayer, legislative prayer, ceremonial prayer,


WASHINGTON, DC (Catholic Online) - In the wake of the news that the IRS asked Pro-Life applicants for recognition of tax exemption under Section 501 about the actual content of their prayers comes news that another branch of the government has decided to examine the content of prayer.

The United States Supreme Court granted certiorari (Review) in the case of Town of Greece v. Galloway, et al. (docket 12-696) on Monday, May 20, 2013. Here is the official question as presented on the actual the docket of the Supreme Court. It summarizes the case and controversy.

*****
In Marsh v. Chambers, 463 U.S. 783 (1983), this Court upheld the practice of starting legislative sessions with an invocation, based on an "unambiguous and unbroken history" of legislative prayer dating back to the First Congress. (Id. At 792.) The prayers in Marsh were offered for sixteen years by the same paid Presbyterian minister and frequently contained explicitly Christian themes. (See id. at 785, 793 n.14.)

Nonetheless, this Court held that such prayers are "simply a tolerable acknowledgment of beliefs widely held among the people of this country," and constitutional unless the selection of prayer-givers "stem[s] from an impermissible motive" or "the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."( Id. at 792, 793, 794-95.) The Court declined to apply the test from Lemon v. Kurtzman, 403 U.S. 602 (1971).

In this case, the court of appeals held that the Town of Greece violated the Establishment Clause by allowing volunteer private citizens to open town board meetings with a prayer. Though the Town had never regulated the content of the prayers, had permitted any citizen from any religious tradition to volunteer to be a prayer-giver, and did not discriminate in selecting prayer-givers, the court struck down the Town's prayer practice, applying an "endorsement" test derived from Lemon. See App. 17a. The question presented is:

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

*****
Greece is a city in upper State New York which is home to about 100,000 residents. Like many cities, my own included, public legislative sessions begin with a prayer. Local clergy or lay leaders are regularly invited. As a member of the Clergy for 17 years, I have led such prayers on several occasions, locally and at the State level.  It is a wonderful practice and rooted in the history of the American experiment.

Two residents in Greece, New York,Susan Galloway and Linda Stephens, did not like prayer before legislative session. So, they literally made a federal case out of the practice. They sued, claiming the practice was unconstitutional. One of them, Susan Galloway, is the named plaintiff. Her name will be memorialized in the decision of the Court. 

They claimed that the prayer somehow constituted an establishment of the Christian religion. That claim was accepted by the Second Circuit Court - even though the facts clearly indicated that the prayers were offered by numerous representatives of various religious communities.

The Second Circuit took it upon themselves to decide that "a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause."

Their law suit ended up going all the way to the U.S. Supreme Court after the Second Circuit Court of Appeals held the practice to be unconstitutional. The courageous City leaders sought this review. The two complaining parties fought the review because they were happy with the Second Circuit opinion.

This dispute, since it has been chosen for review by the US Supreme Court, now has the makings of becoming a major Establishment Clause case. The last time the High Court addressed prayer at the beginning of legislative sessions was in 1983 in a case entitled Marsh v. Chambers, out of Nebraska.

In that opinion the Court upheld the practice of having a State Chaplain begin legislative sessions with a prayer as a matter of a tradition dating back to the American founding. It did not use the so called "Lemon Test", which it formulated in 1971. Thus, it did not consider the content of the prayer.

Since then, the High Court has considered prayer at graduation and at football games. In those cases it did analyze the content of the prayer. It also considered whether the party offering it was somehow a state actor thereby triggering this indecipherable application of the establishment clause.

The notion is that such a connection somehow constitutes a government endorsement of religion. Discerning the rationale used by the Supreme Court opinions in this vital area of constitutional law is futile, because there is none.

All who are concerned about religious freedom in the United States should watch this new case with great concern.  As a constitutional lawyer I have long questioned the current establishment clause law in our Nation. It is clearly an invention of a judicial branch increasingly hostile to religious faith and expression. 

In 1992, when I served as the Executive Director of the American Center for Law and Justice (ACLJ) I wrote a law review article entitled "In the Wake of Weisman: The Lemon Test is Still a Lemon but the Psycho-coercion Test is more Bitter Still". In that article, I trace the history of the interpretation of the Establishment clause of the First Amendment to the US Constitution and the developments of the last few decades.

I predicted the insanity that would follow from the efforts of the Supreme Court to apply the so called "Lemon Rule" (named after the Courts 1971 opinion in Lemon v Kurtzman) and it's ever expanding "interpretations" and permutations.

Insanity is precisely what has occurred.

We are experiencing a judicial ping pong game in the decisions coming out of the Supreme Court concerning the Establishment Clause.

As it relates to religious displays in the public square, there are incomprehensible opinions requiring a showing that religious symbols have a secular purpose - as though religion and the common good are mutually exclusive.

Federal Judges now make up their own rules and preferences by which they decide whether a religious symbol will be allowed to stand on public land or in a public building. There is not even a pretense that the actual words of the Establishment Clause have any effect.

As it relates to the longstanding practice of acknowledging God at the beginning of deliberations of government, the intolerant secularists are urging the Courts to become religious censors. The decision of the Second Circuit in the case the US Supreme Court accepted on Monday is an example of how bad it has gotten.

The Establishment Clause of the First Amendment to the Bill of Rights is best understood as an anti-establishment clause. It was intended to prohibit the establishment of one particular religion - in the sense of a Federal or State sponsored Church which mandated adherence from unwilling citizens.

The American founders fled coercive approaches to religion which compelled adherence to a particular sect. Yet, they were also not anti-religious. They were assuredly not against religious symbols or religious expression. Our history is filled with them. Or, more accurately, it once was.

Religious symbols and legislative prayers are no longer seen as part of the history of the West and the American founding. Rather, they are perceived as a threat to the secularist order. When symbols are allowed they are eviscerated of any real religious meaning. They become secular and acceptable.

The U.S. Supreme Court handed down two opinions in Ten Commandment cases on June 27, 2005 which added to the confusion. The Justices (at least five of them) upheld a display of the Ten Commandments on public land in Texas if the display is placed within the context of other displays that speak to the history of the Nation.

However, the Court also held that some displays of those same commandments, with the very same content, cannot adorn the walls of a courthouse, at least if they look like ones which hung in Kentucky. It appears that if the Ten Commandments are placed within the context of other codes governing human behavior, such as they are in the display hung right in the U.S. Supreme Court, they might be permissible.

When prayer is engaged in at the beginning of legislative sessions will we soon have to submit it to obtain the approval of the State censors in black robes?

The case out of New York presents an opportunity for the US Supreme Court to bring needed clarity to Establishment Clause jurisprudence. I hope they do so. We have witnessed a growing governmental hostility toward religious faith and expression in the public square. It does not serve the common good.

The effort runs contrary to our founding documents, and is unfaithful to our history as a free people. It is an improper application of the Establishment Clause, found in the First Amendment to the Bill of Rights of the United States Constitution. It is a form of religious censorship which threatens our first freedom.

Federal Judges make up their own rules by which they decide whether a religious symbol will be allowed to stand on public land or in a public building. They decide on their own what prayers are acceptable and which are not. There is no longer even a pretense that the actual words of the Establishment Clause, the Free Exercise Clause and the free Speech Clause have any objective meaning or effect.

Religious faith and expression - and the values informed by faith - serve and promote the common good. Religious freedom is a fundamental and basic human right which must be secured and protected by law in truly free Nations. Rightly understood and applied, religious freedom means a freedom for religious expression; not a removal of such expression from public places or a censoring of prayer from legislative sessions.

---


Pope Francis: end world hunger through 'Prayer and Action'


© 2014 - Distributed by THE NEWS CONSORTIUM

Pope Francis Prayer Intentions for January 2015
General Intention:
That those from diverse religious traditions and all people of good will may work together for peace.
Missionary Intention: That in this year dedicated to consecrated life, religious men and women may rediscover the joy of following Christ and strive to serve the poor with zeal.



Comments


More U.S.

Could terrorists attempt to attack the White House with a drone? Crash sparks debate over future use of drones in war Watch

Image of A small, four propeller drone, crashed on the White House lawn, spurring a discussion on whether drones may be used by terrorist groups in the future.

By Matt Waterson (NEWS CONSORTIUM)

A two-foot-long, four propeller drone crashed onto the White House grounds yesterday, raising troubling questions that drones could be utilized by terrorists or other potential murderers to attack the White House or other U.S. government institutions that have ... continue reading


The Thrill of the Chaste: Matt C. Abbott Interviews Dawn Eden Watch

Image of Dawn Eden, author of the highly-acclaimed My Peace I Give You and the Catholic edition of The Thrill of the Chaste

By Matt C. Abbott

Being a member of the Mystical Body of Christ, and receiving Jesus' own Body and Blood in the Eucharist, has given me a deeper understanding of the meaning of being embodied. I see more clearly how chastity enables one to love fully in each relationship, in the ... continue reading


GOP teams up with Israeli prime minister to forcefully override Obama's Iran policy Watch

Image of

By Catholic Online (NEWS CONSORTIUM)

House Speaker John Boehner is seeking to enlist Israeli Prime Minister Benjamin Netanyahu to support a congressional plan to override President Obama's Iran policy on March 3. Boehner hopes to bring Netanyahu to a joint session of the House and Senate. Boehner ... continue reading


The Prophetic Connection Between the March for Life and the Week of Prayer for Christian Unity Watch

Image of

By Deacon Keith Fournier

It is no accident that the March for Life always falls within the National Week of Prayer for Christian Unity. It is prophetic.We have been thrown together in a common defense of life in a western culture which has lost its moral compass. Our Marching together ... continue reading


Early Christian Deacon and Martyr Vincent Calls Us to Heroic Christian Witness in a Hostile Culture Watch

Image of Vincent was born in the Third Century in Huesca, Spain and born again to eternal life only four days into the fourth century. He lived in Saragossa where he served the holy Bishop Valerius as a Deacon.He was one of the scores of Christians who suffered brutal persecution under the evil Roman emperor named Diocletian. Diocletian is associated with the last of the ten persecutions of the nascent undivided Christian Church of the first millennium of our history.  Like many early deacons of the undivided Church such as Stephen, Lawrence and Ephrem, the hagiography which has been passed down through the Church records his holiness of life and heroic virtue. He lived the way he died, as a sign of the power of the Gospel and the truth of the presence of the Risen Jesus Christ in our midst.

By Deacon Keith Fournier

The Deacon Vincent was a man like us who encountered the same Risen Lord Jesus whom we have encountered. He struggled with the choices which always accompany living the Christian life in the midst of a culture which has squeezed God and His truth out of the ... continue reading


Caught in the act: Telephone scammers get comeuppance from plucky woman Watch

Image of Becoming pro-active, Rachel Fitzsimmons decided to take action in an effort to spread awareness so that others do not fall for the swindle.

By Troy Dredge, Catholic Online

Telephone solicitors threatening phony legal action are the bane of many people's existence. They typically prey upon "old-timers" who still have landlines in their homes and are home in the evenings. Rachel Fitzsimmons, of Denver, Colorado received such a call ... continue reading


Is Israel beholden to Obama? Should the president be able to hold the American people hostage via threat of veto? Republicans and Israeli prime minister say no! Watch

Image of Benjamin Netanyahu is set to speak before a joint session of Congress on March 3 about keeping nuclear capabilities out of the hands of Iran.

By Matt Waterson (NEWS CONSORTIUM)

On March 3, Israel's prime minister, Benjamin Netanyahu will speak before the a joint session of the U.S. Congress, a move which is as much a show of support for Israel from the Republican dominated legislature as it is a rebuff of President Obama. LOS ANGELES, ... continue reading


Upset over private donations, Liberal protestors barged in on the Supreme Court Watch

Image of Members of 99rise during a protest.

By Matt Waterson (NEWS CONSORTIUM)

As the Supreme Court opened on January 21, a rare disturbance broke out which caused seven protesters to be removed. LOS ANGELES, CA (Catholic Online) - Chief Justice John Roberts was about to announce the day's opinions when a protester stood up and began shouted: "We ... continue reading


The First Right is the Right to Life. It is Time to End Legal Abortion on Demand Watch

Image of The great human rights movement of our age is the struggle to restore to the Civil and positive law the legal recognition of the fundamental Human Right to Life. It is already a fundamental human right, and one which can never be taken away. This Right to Life is the foundation of all other rights. It is the first solidarity issue. The child in the womb is our innocent neighbor. It is wrong to kill any innocent neighbor. We know this and we have perpetuated the lie for too long.

By Deacon Keith Fournier

No one with integrity any longer argues that the little girl or little boy killed through procured abortion is not a human being. When the abortion occurs through miscarriage we properly enter into the mourning of the mother over the loss of the one we call - her ... continue reading


Archbishop Josť H. Gomez: OneLife LA and 9 Days for Life Watch

Image of Archbishop Gomez - In granting a legal right for some people to take the lives of others, the Supreme Court in effect decided that human rights are granted by government - not by God. That gives the government the final say - not only in defining what is right and wrong, but also in deciding who gets to live and who does not. There are many injustices in our society, but the most fundamental is the one our society rarely acknowledges - the routine taking of innocent human life every day through abortion.

By Archbishop Josť H. Gomez

Roe v. Wade continues to shape American consciousness and public life. At the political level, from debates in state legislatures to federal questions about health insurance, our country is clearly still divided over whether to allow abortion and what limits ... continue reading


All U.S. News

Newsletters

Newsletter Sign Up icon

Stay up to date with the latest news, information, and special offers

Daily Readings

Reading 1, Hebrews 10:11-18
11 Every priest stands at his duties every day, ... Read More

Psalm, Psalms 110:1, 2, 3, 4
1 [Of David Psalm] Yahweh declared to my Lord, 'Take ... Read More

Gospel, Mark 4:1-20
1 Again he began to teach them by the lakeside, but ... Read More

Saint of the Day

Saint of the Day for January 28th, 2015 Image

St. Thomas Aquinas
January 28: St. Thomas Aquinas, priest and doctor of the Church, patron of ... Read More

Inform, Inspire & Ignite Logo

Find Catholic Online on Facebook and get updates right in your live feed.

Become a fan of Catholic Online on Facebook


Follow Catholic Online on Twitter and get News and Product updates.

Follow us on Twitter