The chaplain of the U.S. Senate made news recently, when he opened a legislative session with the following prayer: “Lord, when our federal shutdown delays payments of death benefits to the families of children dying on faraway battlefields, it’s time for our lawmakers to say, ‘Enough is enough.’ … Forgive us, reform us and make us whole.”

It may come as a surprise that the Congress employs chaplains to open its sessions with prayer, but in fact such legislative prayers are commonplace, and they even have been endorsed by the U.S. Supreme Court.

In the 1983 case of Marsh v. Chambers, the court asked whether Nebraska’s employment of a chaplain to begin each meeting of the state Legislature with a prayer was an unconstitutional establishment of religion. Because the first Congress, which proposed the First Amendment, with its ban on religious establishments, itself employed a chaplain to pray at its sessions, the court concluded that paid chaplains and legislative prayer were both constitutional.

The Supreme Court last week returned to the issue of legislative prayer, but in a new context. Since 1999, Greece, N.Y., has begun the monthly meetings of its town board with a prayer. Unlike Congress, the town of Greece doesn’t pay a chaplain. Instead, it solicits volunteers from religious groups that have sanctuaries in the town.

In theory, anyone in the community could lead the opening prayer. In practice, however, virtually all of the prayers have been led by Christian clergy, and the lower courts found that “a substantial majority of the prayers” included specifically Christian language — references to Jesus Christ as Lord and Savior, for example — and were led in such a way that members of the community in attendance at the meetings felt compelled to participate.

The town argues that, according to the Marsh case, legislative prayers are constitutional, as long as they are not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.”

They insist that their purpose in having opening prayers is innocent and appropriate. The opening prayers reflect the desire of citizen-legislators to exercise their religion, by asking for divine guidance as they approach the difficult tasks of government. That a variety of speakers is invited is a recognition of the community’s pluralism and diversity, indicating that the prayers are given by the guest chaplains as individuals and not made by the town in its public capacity.

The appeals court rejected the town’s argument, focusing not on the town’s intentions, but on the effect of its practice. It concluded that “the town’s practice, viewed in its totality by an ordinary, reasonable observer” constituted an “endorsement of a particular religious viewpoint.”

If the town of Greece had tried harder to get a diversity of guest chaplains, or if it had publicized more widely that it would allow any volunteer to deliver an invocation, or if it had provided more guidance to its guest chaplains to avoid sectarian language, the result would have been different, the appeals court suggested.

Since a solid majority of the prayers were overtly, explicitly Christian prayers, however, an observer could reasonably believe that the town had endorsed Christianity in a way that would make non-Christians feel like second-class citizens — exactly what the ban on religious establishments is supposed to prevent.

At oral argument before the U.S. Supreme Court, the justices repeatedly challenged the attorneys to identify a clear principle to distinguish what is and is not permitted. Unfortunately, no good principles presented themselves.

To ban all legislative prayer would be to sever the First Amendment from its historical foundations and would yield a result identical to the establishment of atheism.

To permit all legislative prayer would risk violating the core purpose of the religion clauses, which is to enable all the members of our diverse society to live together as equal citizens.

For the court to specify which prayers are too sectarian and which are acceptable would risk making the court the author of new civicly acceptable religion, which itself would seem to violate the Establishment Clause.

Late in the oral argument, Justice Elena Kagan ruefully observed that “every time the court gets involved in things like this, it seems to make the problem worse rather than better.”

Kagan has it right: Unless the justices have new and better principled guidance to offer than appeared in their oral argument, the Supreme Court should dismiss the case and let the lower courts find practical ways of accommodating the beliefs of all.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.

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