Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

Congressional Prayer Goes Off-Message

I’ve long believed that the supposedly non-denominational prayers spoken before each Congressional session is as clear a violation of the establishment clause as has been, well, established. Yet the tradition/ritual has persisted for as long as memory serves, and has been explicitly validated by the Supreme Court in Marsh v. Chambers, 463 U.S. 783 (1983) (a 6-3 decision), where C.J. Burger wrote:

In light of the unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative sessions
with prayer has become part of the fabric of our society. To invoke Divine
guidance on a public body entrusted with making the laws is not, in these
circumstances, an “establishment” of religion or a step toward establishment;
it is simply a tolerable acknowledgment of beliefs widely held among the
people of this country. [emphasis added]

In other words: (1) we’ve always done it this way; and (2) a majority of people believe in the particular religious message invoked.

In a two paragraph dissent, Justice Stevens makes the fairly simple point that “the religious beliefs of the chaplain [administering the invocation] tend to reflect the faith of the
majority of the lawmakers’ constituents.” Indeed, that’s how it’s always been–the invocations given both state and federal congressional sessions are overwhelmingly Christian, and invariably ecumenical as opposed to sectarian. So what happened when the the US Senate strayed from this age-old script and invited, for the first time ever, a Hindu cleric to give the invocation?

I’ve consistently argued that happy shiny religious pluralism is impossible where the government puts its weight behind “religion” as a whole because “religion” invariably assumes a meaning projected by the majority–namely a watered down non-denominational version of Christianity that falls just short of offending most Protestants and Catholics. Indeed, in an effort to offend no one, non-denominationalism wreaks havoc on the establishment clause in two ways: (1) it establishes a state religion in its own right; and (2) the bastardized yet established “religion” boasts no actual adherent and is utterly bereft of meaning, as its content is merely averaged from a cross section of popular American religious beliefs..

Today’s incident floridly demonstrates these points, as the Senate floor became the staging area to one of the ugliest sectarian flashpoints in recent memory (in a non-war context anyway), as evangelists from the far-right wing group Operation Save America disrupted a confused and shaken Hindu cleric, saying “Lord Jesus, forgive us father for allowing a prayer of the wicked, which is an abomination in your sight.” It’s not difficult to imagine the collective outrage if we hypothetically switch the parties up–make the cleric Protestant and protester Muslim. The ease with which we can imagine the outrage demonstrates why this practice violates the Constitution, and why it should’ve ended over 200 years ago.

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