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Sectarian Prayer at Memorial Day Ceremony Upheld

by Professor Will Huhn on May 29, 2011

in Constitutional Law,Establishment Clause,Wilson Huhn

A federal district court judge has issued a temporary restraining order against the Department of Veteran's Affairs allowing a Christian minister to deliver a sectarian invocation at a Memorial Day ceremony.

KHOU of Houston reports:

Pastor Scott Rainey, of the Living Word Church of The Nazarene, was told by the VA that if he did not remove a reference to Jesus in his [Memorial Day ceremony] prayer, he would not be allowed to provide the invocation.

The VA argued that using the name Jesus in the prayer excluded other beliefs held by veterans.

Federal District Judge Lynn N. Hughes granted a temporary restraining order Thursday that prevents the U.S. Department of Veterans Affairs and the Houston National Cemetery from blocking Rainy.

Rainey's brief invocation quotes the Serenity Prayer composed by Reinhold Niebuhr, the Lord's Prayer quoting Jesus, and closes with these words:

While respecting people of every faith today, it is in the name of the risen Lord, Jesus Christ, that I pray.  Amen.

Terry Langford of the Houston Chronicle reports that the Veterans Affairs Department will allow the prayer to go forward:

Attorneys for the U.S. Department of Veterans Affairs informed a federal judge in Houston today the agency has reconsidered its position on religious-specific prayer at Houston National Cemetery, agreeing a pastor can utter âJesus Christâ during his Memorial Day prayer.

â(The agency) will let the prayer go on this Monday,â Assistant U.S. Attorney Fred Hindrichs told U.S. District Judge Lynn Hughes.

Steve Almasy of CNN has posted this story about this matter.

This case presents a number of competing considerations.  On the one hand, it is clear that the government may not dictate the content of a prayer that is conducted at a private ceremony.  It is equally clear that the government may invite whomever it wishes to deliver the invocation at a public ceremony.  In this case the government told Reverend Rainey that if he was unwilling to remove the reference to Jesus Christ that it would invite another pastor to deliver the invocation.

Most members of the clergy regardless of their faith wisely deliver ecumenical prayers at public university graduations, openings of legislative sessions, and other government-sponsored ceremonies.  For example, note the uproar that occurred recently in Minnesota when anti-gay minister Bradlee Dean delivered a partisan and sectarian prayer to open the legislative session.  (See Rachel Stassen-Berger and Bob Von Sternberg, Prayer controversy jeopardizes same-sex amendment vote: A controversial pastor delivered a prayer that left House members – of both parties – shocked and incensed, from the Star-Tribune; and Andy Birkey, Religious, political groups criticize Bradlee Dean prayer: Catholic Conference, ACLU and Mayor RT Rybak are among those weighing in, from the Minnesota Independent.

In the context of this particular situation, unlike Reverend Rainey most people understand that it is highly disrespectful to Jewish and Muslim veterans to "honor" them in the name of Jesus Christ.  On the other hand, religious speech receives utmost protection under the First Amendment, and under the First Amendment the government should not dictate the content of any prayer.  If we are to have prayer on public occasions about the best that government officials can do is to be careful about whom they invite to give the prayer.

Those in favor of restoring government-led prayer in the public schools often overlook the problems that this engenders in a pluralistic society such as ours.  Back in the 1960s some states attempted to address this by requiring the reading of the Lord's Prayer at the beginning of the school day.  This obviously was an imperfect solution since it excluded non-Christians.  Other states required readings from the Bible, perhaps on the theory that this would be inclusive of Jews, at least when passages from the "Old Testament" were chosen.  Should we also have readings from the Koran or the Bhagavad-Gita?  The State of New York even wrote a short, ecumenical prayer to be recited to all public school students:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

In 1962 in the case of Engel v. Vitale the Supreme Court declared the Regents Prayer unconstitutional.  Writing for the majority, Justice Hugo Black stated:

[T]he constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. 

Of course, people are always free to say prayers of their own composition.  For those of us who used to be teachers in the public schools, this would have been something on the order of "God, just help me get through the day!"  I guess that's appropriate for students, too.

In Lee v. Weisman (1992), the most recent public school prayer case, the school principal had given the rabbi who was invited to deliver the invocation and benediction a pamphlet advising him how to compose nondenominational prayers for the occasion.  The rabbi complied with the advice and delivered beautiful prayers, but the prayer was still ruled unconstitutional in part because the government had found it necessary to advise the rabbi about the contents of the prayer.  Justice Kennedy stated:

Principal Lee provided Rabbi Gutterman with a copy of the "Guidelines for Civic Occasions" and advised him that his prayers should be nonsectarian. Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, Engel v. Vitale, 370 U.S. 421, 425 (1962), and that is what the school officials attempted to do.

Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the flashpoint for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school's explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes are obliged to attend.

The situation at hand – prayer at a public Memorial Day ceremony – does not involve the same consideration of government indoctrination of one's children that was present in Lee v. Weisman, but it does present the same practical problem of devising a prayer that will please everyone or at least not offend anyone and the same underlying constitutional values of ensuring that the government does not control religious exercise and that religion does not exercise governmental power.  In a public ceremony meant to honor my ancestors I would hope that the government would not invite prayers that are incompatible with what my ancestors believed.

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