web analytics
October 25, 2014 / 1 Heshvan, 5775
At a Glance
InDepth
Sponsored Post
Meir Panim with Soldiers 5774 Roundup: Year of Relief and Service for Israel’s Needy

Meir Panim implements programs that serve Israel’s neediest populations with respect and dignity. Meir Panim also coordinated care packages for families in the South during the Gaza War.



Home » InDepth » Op-Eds »

Are Christian Invocations Constitutional?

The inauguration of an American president has, since 1937, always begun with an invocation by a clergyman
pope

The U.S. Supreme Court announced last month that when the justices return from their summer vacations they will tackle a uniquely American church-state constitutional question they have avoided for thirty years.

There is no country in the world where divine guidance is sought as consistently at the inception of governmental deliberations and ceremonial occasions as it is in the United States. The inauguration of an American president has, since 1937, always begun with an invocation by a clergyman and ended with a benediction, as does the convention of every political party. The fact that the 2012 Republican Convention began with a prayer by a young Orthodox rabbi wearing a kippah was well publicized in Israel and in the United States. Rabbis Abba Hillel Silver, Louis Finkelstein, and Nelson Glueck delivered prayers at the inaugurations of Presidents Eisenhower and Kennedy.

Congress routinely begins each legislative day with a ceremonial prayer recited by the chaplain of the House or Senate or by a visiting clergyman who is given the honor. The first rabbi to be given that distinction delivered an invocation in 1860 wearing a tallis and a yarmulke. He included the priestly blessing in his text. He was invited again, although the Episcopal Church viewed his participation as an insult to Christianity. A Muslim imam was first given the honor in 1991 and a Hindu priest in 2000. Rabbis were invited to open a House of Representatives session seven times during the 112th Congress.

This American tradition developed from British practice where, it is said, both Houses of Parliament have, since the sixteenth century, opened their sessions with prayers. In the United States, the custom has been followed down to the least significant and smallest governmental bodies. Town councils and committees routinely assign a few minutes at the beginning of their sessions to a prayer composed and recited by local clergy or by other nominees or volunteers.

Some constitutional purists feel strongly that, on its face, this practice conflicts with the distinctive command of the First Amendment to the Constitution that there be no “law respecting an establishment of religion.” The First Amendment, they say, was designed to distinguish America from Britain, where the Anglican Church is the governmentally “established” faith.

May an American governmental body request the assistance of the Supreme Being of the Christian, Jewish, Muslim, Buddhist, or any other faith without thereby “establishing” a religion? Atheism is, in this view, constitutionally entitled to equal treatment. Does not every governmentally authorized public prayer violate the constitutional rights of atheists?

Soon after he became chief justice of the United States, Warren Burger authored a majority opinion in a church-state case that defined, with a three-part constitutional test, the scope of the First Amendment’s prohibition against religious establishment. In 1983 – twelve years after that landmark decision was announced – the Burger Supreme Court confronted the question of whether sectarian legislative invocations were constitutionally permissible. The state of Nebraska had hired a Presbyterian minister as its official chaplain, and he opened all its sessions with prayers, most of which had indisputably Christian content. When a member of the Nebraska legislature brought a lawsuit to stop the sectarian legislative prayers, a federal appeals court applied Burger’s three-part test and found that Nebraska’s practice failed all of its components.

The American Jewish Congress and the Anti-Defamation League submitted friend-of-the-court briefs urging the Supreme Court to find Nebraska’s legislative prayer program unconstitutional. No Jewish advocacy group supported sectarian legislative prayer.

Chief Justice Burger wrote an opinion for six justices of the court and ignored the constitutional standard articulated in his earlier decision. The Supreme Court ruled in 1983 that legislative prayer was constitutionally permissible because of the “unambiguous and unbroken history of more than 200 years” that supported the tradition of legislative prayer. Burger rejected the argument that Nebraska’s record of prayer was sectarian because, he said, “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”

This decision seemed to resolve the legislative prayer issue. But in the past decade opponents of legislative prayer began with new lawsuits based, curiously enough, on a standard the Supreme Court had announced in the 1989 decision in which it had permitted inclusion of a Chanukah menorah in a Pittsburgh holiday display but barred a crèche in a county courthouse. (This article’s author represented Chabad, the owner of the menorah, in the Pittsburgh case.)

That decision, it was said, created a new constitutional standard: Is government “endorsing” a particular religion? Ten lawsuits challenging invocations at meetings of local school boards and city or county councils were filed in federal courts since 2004.

The case that has now reached the Supreme Court concerns the town of Greece, just outside Rochester, New York. Beginning in 1999, monthly meetings of the town board started with a prayer recited by someone invited by the town. All the prayer-givers before 2008 were Christian. After hearing complaints about this seemingly exclusionary practice, the town invited a Wiccan priestess, the chairman of the local Baha’i congregation, and a “Jewish layperson” to deliver prayers in 2008. But in 2009 and 2010, the town resumed the practice of inviting only Christians.

A federal court of appeals decided that the record of prayers between 1999 and 2010 was an unconstitutional “endorsement” of Christianity. It noted that “a substantial majority of the prayers in the record contained uniquely Christian language” and that the process for selecting prayer-givers “virtually ensured a Christian viewpoint.” The result, said a very respected non-Jewish appellate court judge, “identified the town with Christianity in violation of the Establishment Clause.”

The town’s request that the Supreme Court review and reverse the decision was supported by a friend-of-the-court brief submitted by eighteen states and another friend-of-the-court brief submitted by forty-nine members of Congress. Each of the briefs noted that the appellate court decision effectively cast doubt on legislative prayers in state legislatures and in the Senate and House of Representatives. If, they said, the kind of detailed analysis of the identity of prayer-givers and the content of prayers were applied to their invocations, courts might invalidate their practices.

American Jewish organizations will probably address this case with friend-of-the-court briefs opposing legislative prayer, as they did in 1983. America’s Jews have a long and consistent record of challenging any governmental action that appears to favor Christianity, is even slightly sectarian, or endorses religion in any manner.

Jewish participation in the ritual of legislative prayer has, however, become common and conventional, and the “Judeo-Christian heritage” is now part of American culture. Astounding as it might seem, the Orthodox Jewish community would probably benefit more from support of legislative prayer and opposition to an expansive interpretation of the Establishment Clause (even if the prayers in an individual case are overwhelmingly Christian) than by hewing to a Jewish party line hallowed by past briefs of secular Jewish organizations.

About the Author: Nathan Lewin is a Washington, D.C. lawyer who has argued numerous cases in the U.S. Supreme Court and teaches a seminar in Supreme Court litigation at Columbia Law School.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

One Response to “Are Christian Invocations Constitutional?”

  1. Gil Gilman says:

    It is all posturing and humbug…can Hashem be pleased with their contempt?

    "And the L-rd said: Forasmuch as this people draw near, and with their mouth and with their lips do honour Me, but have removed their heart far from Me, and their fear of Me is a commandment of men learned by rote:

    Therefore, behold, I will again do a marvellous work among this people, even a marvellous work and a wonder; and the wisdom of their wise men shall perish, and the prudence of their prudent men shall be hid.

    Woe unto them that seek deep to hide their counsel from the Lord, and their works are in the dark, and they say: 'Who seeth us? and who knoweth us?'

    O your perversity! Shall the potter be esteemed as clay; that the thing made should say of him that made it: 'He made me not'; or the thing framed say of him that framed it: 'He hath no understanding?"

Comments are closed.

SocialTwist Tell-a-Friend

Current Top Story
Do you know where your vegetables grow?
Not So Kosher Shemittah L’Mehadrin
Latest Indepth Stories
Eller-102414-Cart

I had to hire a babysitter so that I could go shopping or have someone come with me to push Caroline in her wheelchair.

Bills to restore the balance of power in Israel will be fought by the not-so-judicial left.

Widespread agreement in Israel opposing Palestinian diplomatic warfare, commonly called “lawfare.”

Chaye Zisel Braun

Arab terrorism against Jews and the State of Israel is not something we should be “calm” about.

Peace Now Chairman Yariv Oppenheimer

The Israeli left, led by tenured academics, endorses pretty much anything harmful to its own country

We were devastated: The exploitation of our father’s murder as a vehicle for political commentary.

Judea and Samaria (Yesha) have been governed by the IDF and not officially under Israeli sovereignty

While not all criticism of Israel stemmed from anti-Semitism, Podhoretz contends the level of animosity towards Israel rises exponentially the farther left one moved along the spectrum.

n past decades, Oman has struck a diplomatic balance between Saudi Arabia, the West, and Iran.

The Torah scroll which my family donated will ride aboard the USS Gerald R. Ford aircraft carrier

The Jewish Press endorses the reelection of Gov. Andrew Cuomo. His record as governor these past four years offers eloquent testimony to the experience and vision he has to lead the Empire State for the next four years.

I think Seth Lipsky is amazing, but it just drives home the point that newspapers have a lot of moving parts.

Myth #1: It is easy to be a B’nai Noach. It is extraordinarily hard to be a B’nai Noach.

The question of anti-Semitism in Europe today is truly tied to the issue of immigration.

Polls indicate that the Palestinians are much more against a two state solution than the Israelis.

More Articles from Nathan Lewin
488px-WielkaSynagoga3_Lodz

In the Thirties it was common for anti-Semites to call on Jews to “go to Palestine!”

Pesach matza cover

Federal and local laws protect your right to workplace accommodations for your religious observance.

The inauguration of an American president has, since 1937, always begun with an invocation by a clergyman

The late Israeli Supreme Court judge Menachem Elon, was a pioneer of Jewish and Israeli law.

On Tuesday, February 28, it was widely reported that the basketball team of Houston’s Robert M. Beren Academy had “forfeited” its place in the semi-finals of the tournament conducted by the Texas Association of Private and Parochial Schools (TAPPS) because it would not play on Friday night and Saturday. But a headline in Friday’s New York Times read: “In Reversal, a Jewish School Gets to Play.”

On August 9, 2001, Ahlam Tamimi, a member of Hamas, drove a suicide bomber to the Sbarro restaurant in the heart of Jerusalem, where the bomber blew himself up, killing 15 people including Judy Greenbaum, an American citizen from New Jersey.

Editor’s Note: On July 30, the firm of Lewin & Lewin, LLP, filed in the Supreme Court its brief in Zivotofsky v. Clinton, No. 10-699, on which the Supreme Court will hear oral argument in early November. The constitutional issue in the case is whether Congress had the authority to enact a law in 2002 that directs the Secretary of State to permit U.S. citizens born in Jerusalem to record their place of birth in their passports as “Israel.” Because the State Department has consistently refused to recognize any part of Jerusalem as being in Israel, the government has refused to implement the 2002 law, claiming it violates the President’s constitutional authority to “recognize foreign sovereigns.” This is the Introduction to the Zivotofsky brief written by Nathan Lewin, followed by a Summary of Argument.

Congress has never seen a better friend of the observant Jewish community than Stephen Solarz, who died of esophageal cancer on the 22nd of Kislev. Yonoson Rosenblum’s recently published biography of Rabbi Moshe Sherer describes Solarz as an “invaluable ally” for many Agudath Israel projects and there are 20 references to Solarz in the book’s index.

Printed from: http://www.jewishpress.com/indepth/opinions/are-christian-invocations-constitutional/2013/06/27/

Scan this QR code to visit this page online: