From Independence Hall to the Town Hall: Religious Liberty Has a Prayer

by
May 9, 2014

It is sometimes difficult to conceive that our Founding Fathers might have writer’s block.  When we think of our founding era and the efforts to encapsulate this great experiment in democracy, we sometimes think what we now know as the revolutionary ideas housed in our founding documents simply flowed from these brilliant minds through the quill and onto the parchment.

Yet, in 1787, the Constitutional Convention was at a severe stalemate.  They had labored for weeks to put into final form a new constitution.  Indeed, this was a second constitutional convention – one made necessary by the utter failure of the Articles of Confederation that temporarily formed our first government.  Adding to the frustration were the various factions naturally present as states jockeyed through their representatives for authoritative position in the nascent American government.

And it was hot.  Summer in Philadelphia 1787 was not an overly pleasant place, pre-air conditioning.  It was uncomfortable and these delegates had traveled over rough roads by horse back, had been separated from family for weeks, and had been sequestered in what we now know as Independence Hall until they would emerge with a final Constitution.  Having fought a revolution, their lives, fortunes, and sacred honor now hung in the balance.

It was in this hot, sticky, divisive, make-or-break-it moment that a grand American tradition was solidified.  Benjamin Franklin, who was anything but an iconic figure of religion or morality (and quite proudly so, it seems) took to the floor.  As the elder statesman spoke, a hush fell over those in mid-argument.  “I have lived, Sir, a long time,” began Franklin, “and the longer I live, the more convincing proofs I see of this truth — that God governs the affairs of men.  And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid?”

With that, Franklin would give modern day secularists fainting spells.  But, he wasn’t done.  As he wrapped his speech, he made an official motion, one which required an official vote by these official representatives of we the people, to wit:

“I therefore beg leave to move — that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of this City be requested to officiate in that service.”

Thus was the tradition of opening our public meetings, our legislative debates, and other government meetings with prayer born.  Well, not so much born – public prayer had been routine in this country since the signing of the Mayflower Compact – as it was etched in our collective understanding of the unique American brand of democratic republicanism.

And this came around the time this very convention was considering the words that would eventually become what we know today as the First Amendment and, more narrowly within it, the Establishment Clause (though both came in final form almost two years later).  Did these men who seconded and considered Franklin’s official motion for clergy-led prayer not know the same would violate the very document they were drafting?  Did they not realize they were establishing a religion, violating the “separation of church and state,” and offending the sensitive sensibilities of the secularists among them?

Fast forward almost two and a half centuries to the present-day town of Greece, New York.  There, as in many cities, counties, and states of modern America, lawmakers began their meeting with a prayer by one or more of the clergy of their city.  These clergy, and the occasional lay citizen of an abiding faith, would officially implore the assistance of heaven and its blessings upon the forthcoming deliberations.  Yet, the very same practice that received the approbation of the conventioneers in 1787 is now the subject of yet another lawsuit by those claiming a violation of Franklin and company’s Constitution.

Against this backdrop, Justice Kennedy’s opinion for the Supreme Court of the United States in Greece v. Galloway is all the more momentous.  For Kennedy, and four other justices, it was this, “history and tradition [that has] shown that prayer in this limited context could ‘coexist with the principles of disestablishment and religious freedom.'”

More than that, our double-centuried commitment to ceremonial prayers of the kinds that Franklin requested, has become a part of the American experience.  “Ceremonial prayer is but a recognition that,” writes Kennedy, “since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgement of their belief in a higher power, always with due respect for those who adhere to other beliefs.”

One can hear in Justice Kennedy’s words the distant echos of Franklin’s confession that, “God governs the affairs of men” and guides, directs, and rules over even a self-governed people as well as their elected representatives.

And, as Franklin said, the Court reaffirmed in Galloway that such prayers are not merely of historical import, but welcomes the involvement of all Americans – most especially the Clergy.  Why?  “It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”  Welcoming the participation of the faithful in ceremonial prayer celebrates diversity.  Censoring prayers flattens our multiformity.

In other words, the second important holding (continuing our historical tradition being the first) of the Galloway decision lies in the Court’s imprimatur being set upon prayer by clergy.  This may seem obvious, but it is no less important. It was alleged that these prayers were the official prayers of the state and, as such, violative of the Establishment Clause of the First Amendment.  A bare, but solid, majority disagreed. Instead, the Court held, legislative prayers are the prayers of the one who prays them.  In that light, not only do legislative prayers not violate the First Amendment, attempts to suppress or otherwise control the content of them are a gross violation of religious liberty.

Such a welcoming of ceremonial prayers in the public forum by whatever the faith background of the one who prays ought to be expected in America.  Or, at least, the majority of the Court seems to think so.  We live in a pluralistic society in which we can stomach various voices entering the public square.  To put it more casually, what the Court held is that we are all adults in this country.  Adults can put on their big-boy pants and enter into the public debate without having to censor unnecessarily someone else’s speech simply because one person is offended.  The solution to speech one does not like is not censorship, but more speech.

Censoring speech because its spiritual nature might cause offense is contrary to the history and jurisprudence of America. As Kennedy wrote, “Offense, however, does not equate to coercion . . . That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition.”

Before turning to some points of application, we must also highlight an aspect of the Galloway majority opinion that may be overlooked.  Franklin noted the sovereign rule over government nature of the Almighty.  Kennedy, writing for the Court, seems to key in on that important note.  A Judeo-Christian view of government suggests that a limited government is one owing its authority, not simply to the consent of the governed, but also to the Governor of all nations.  While not explicitly stated in this manner, what else can be meant when the Court acknowledges prayers to be offered to a higher authority, rather than to the lawmakers themselves?

It is the lawmakers that, by these prayers, are reminded of their station in life.  They are not the top of the government food chain that, in moments of self-pride they may think themselves to be.  Rather, as Kennedy writes, “The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing . . . [T]heir purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers.”

That time, as Franklin made clear, is one in which the clear understanding of the elected government was that, though greater in size than sparrows, they were no less capable of raising an empire without the Divine’s aid.

With legislative, ceremonial prayers now firmly settled by this Court, where do we go from here?

First, Kennedy has struck a fatal blow to the notion that government is neutral when it sanitizes all religion from the public square.  Indeed, it seems a majority of the Court now believes quite the opposite.  Rather than creating neutrality, that type of nonsectarianism encroaches upon a neo-secular orthodoxy that cannot be sustained by its own logic or the First Amendment.  These will prove to be important words: “Government may not mandate a civic religion that stifles any but the most generic references to the sacred any more than it may prescribe a religious orthodoxy.”

But, in real life, Galloway will have a practical impact for many of us.  Many towns and counties and cities will begin to align their policies with this decision, as some have already done.  That is good.  In the process, like Franklin called for, these cities, etc., will be in great need of the Clergy of their city to provide these prayers and invocations.  You should seize this grand opportunity to not only add yourself to the long line of legislative prayer givers of decades past, but to continue the tradition with unapologetic prayers in the tradition of your faith.  Your government has affirmed what the Framers set out: religious liberty means being able to order your life in public and private according to the dictates of your faith.  Seize this great gift God has given to you and for which the majority of the globe envies.

And, understand that this prayer you may offer need not be therapeutic or moralistic in focus.  Rather, it is to be reflective of your contribution to a pluralistic society.  We may think less of virtue and absolute truth these days then we did in the days of Franklin, but if pluralism provides us anything, it is to be yet another voice in this world.  Contribute to it without worry that your voice will be silenced.  The Court has given you a grand invitation and protected your right to so attend: “The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech.  Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”

Finally, add to these real prayers by real men of the cloth a touch of bold kindness.  I find it interesting that the Court took pains to explain that permissible prayers – of the kind our history has supported – are not imprecatory prayers.  They are prayers of blessing and invocations for guidance.  As the majority held, “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing serves that legitimate function.”  What is that ‘legitimate function? “[T]o lend gravity to the occasion and reflect values long part of the Nation’s heritage.”

And this ought to mark those of us who are marked by Christ.  Shy not away from a proclamation of the Truth of the Gospel in your prayer, but have your words infused with kindness and grace.

The prayers suggested by Franklin – if they were, in fact, observed – seemed to have worked.  The debate was still as serious as the matters being debated, but as the meetings of the Constitutional Convention continued  the conventioneers seemed to move more swiftly.  A Constitution was produced by the end of summer.  Soon after, a Bill of Rights.  From there came ratification and, by God’s grace an intervening history between then and now of an America possessed of a particular fondness toward religious liberty.

One is left to wonder at what might have been had Franklin not taken to the floor that fateful day in the City of Brotherly Love.  In Franklin’s monologue of 1787, there contained a dire warning.  Amid the rancor that had marked this constitutional convention was the risk of, having won its independence, America might lose its government.  And, should it so quickly decline because its leaders relied upon their own wisdom and not God’s, warned Franklin, “. . . mankind may hereafter this unfortunate instance, despair of establishing Governments by Human Wisdom, and leave it to chance, war, and conquest.”

Thus we have it starkly before us: participate in and preserve this long-standing tradition of invoking God’s blessing and direction of our leaders or risk the inevitable despair that comes from a government established by human wisdom alone and are sustained only by chance, war, and conquest.


Jeremiah G. Dys
Jeremiah G. Dys is Senior Counsel to Liberty Institute a nationwide law firm dedicated to defending and restoring religious liberty according to the vision of the Founding Fathers. He regularly appears local, state, and national media outlets in defense of religious liberty. Along with his wife and four sons, he lives on the edge of the country outside of Charleston, West Virginia.