“The Founders knew what it meant to have a government church
and legislative prayer doesn’t come close,” says Eric Rassbach, Deputy General Counsel with the Becket Fund for Religious
Liberty who was a recent guest on Faith on Trial. “The Founders had been
colonists in an empire with an established church and most of the colonies also
had established churches. Legislative prayer just wasn’t part of what it meant
to have an official government church.”
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.
The brief also explains how the Founders “viewed legislative
prayer as a natural outflow of their political philosophy of limited government
and inalienable, God-given rights.” By hearing prayer before a government
meeting, elected officials are reminded of the limits of their powers, as well
as the source of the inalienable rights which belong to the public they are
elected to serve.
In Town of Greece v. Galloway, which will be heard and
decided in October, the Court will address the constitutionality of legislative
prayers for the first time in decades. In recent years appellate courts have
split over the correct interpretation of the Establishment Clause. Town of
Greece could be an opportunity for the Supreme Court to clarify interpretation
of the First Amendment’s Establishment Clause for the lower courts.
“This case is a good opportunity for the Supreme Court to
put Establishment Clause law onto a firmer foundation by rooting the law in the
Clause’s history rather than the amateur psychoanalysis too often indulged in
by the lower courts,” said
Rassbach.
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