The Supreme Court Doesn’t Have a Prayer: Prayer and the Government

One must have sympathy for the Supreme Court Justices when they are dealing with an issue that in all likelihood is beyond their abilities. Whether you are a Constitutional ‘strict interpretationist’ or of the Jeffersonian view of ‘belonging to the living’ there is no foundational answer to this dispute. People can, and as evidenced by the current case before the Court do, argue every conceivable position for supporting their individual view and interests. Despite this inherent conundrum the Court elected to put this issue on their table and agreed to render a Constitutional decision for the nation. So this may turn out to be a self-inflicted wound.

Whether the Court makes a broad, narrow or side-stepping decision remains to be seen; but I believe that this is exactly the right kind of issue that deserves to be addressed by the Court as it intersects with a number of our Constitutional rights and the role of our government (at the federal, state and local levels) in our society. Enmeshed in this issue are individual rights, religious freedom, separation of church and state, safeguarding minority rights, privacy, censorship, freedom of speech, and equal treatment under the law. So given the broad expanse of our civil structure that falls within the reach of this issue, we can be guaranteed that there will be a notable number of our citizens who will be displeased with the consequences of whatever decision is produced.

Surprisingly there is also an opportunity for the Justices, or at least a majority of them, to approach their decision in an unexpected and insightful way. The Court doesn’t want to get involved in “parsing” prayer for what is acceptable and what is not, nor in creating a societal issue that will raise the issue into the realm of another divisive political issue for our legislative lemmings to follow each other over the cliff. The resolution for the Justices would be to not come down on the side of what is restricted or what is allowed but rather what is required to fulfill all dimensions that societal contract. The Court could set a new course for the proper handling of the divisive positions that different population factions have in such cases where someone want to pit their favorite right or freedom against that of someone else.

The answer to such careless disputes is not to try and determine who is right or who isn’t; because no one is either and that is why this issue creates the mess that it almost surely will.  If we value our rights and freedoms then surely we accept our corresponding responsibilities that entitle us to those rights and freedoms. If you are to choose to include a prayer in a governmental activity then anyone who has their own individual religious orientation should have their own prayer (or statement of belief or non-belief) incorporated into the same proceedings; after all, individuals have an equal right to their views. Before the evocation of prayers, it should be necessary to affirm that the governmental position on any and all views expressed in these prayers are considered of no official value or importance but merely serve to allow citizens to engage in some of our civil rights despite their irrelevance to the proceedings at hand. Because the freedoms are individual in nature, as I don’t believe that the Constitution establishes any group-only based rights, there should be no use of collective terms like ‘we’ or ‘us’ nor should there be any actions required or requested of individuals like standing or ‘bowing of heads’.

Now since this ‘inclusiveness’ principle will not ensure that any given governmental group might not intentionally or inadvertently discriminate against someone by failing to properly accommodate their freedoms into the proceedings there should be a pre-established penalty for such violations. Now there is no reason to believe that jail sentences are a reasonable or prudent punishment; rather there should be a value paid for infringing upon an individual’s rights. The penalty should be paid by those governmental officials who participate in the actions that violated someone’s rights and an equivalent amount to the sum of the officials’ fines would be paid by the governmental entity that the officials represent. The fines would be paid to the individual or individuals whose rights were infringed. Officials would have to actively withdraw their support or endorsement of all prayers before they begin or be subject to the charge of violation of rights.

The level of fines would probably be appropriately scaled on the basis of the number of citizens that the official represented. Thus at the local level fines might be $10K, at the state level at $100K, and at the federal level at $1M per infraction.

Under this system government entities are thus motivated to prevent the violation of anyone’s rights, and to be inclusive in their recognition of every citizen’s freedoms. Of course, there would be no requirement or necessity for a governmental entity to allow prayers to be part of their proceedings as it is not a function of government and thus merely a permitted practice if conducted in a civil and non-endorsed manner.