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.

Legislative Prayer, Charles Lynch, and Civil Religion

Within the myriad universe of contentious church-state issues, most of which did not become contentious until the 20th century, legislative prayer stands apart, its origins tracing to the First Congress, as the Supreme Court pointed out in Marsh v. Chambers (463 U.S. 783). In that 1983 case, the Supreme Court ruled that the prayer preceding each session of the Nebraska state legislature did not offend the establishment clause, basing their decision solely on the fact that the practice had been in place for so long, declining to analyze the problem under the Lemon test, or any other test, merely holding that:

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. As Justice Douglas observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952).

Of course, slavery and denying women and blacks the right to vote were also “deeply embedded in the history and tradition of this country” up until the time progress surpassed our shame. Which is why the court should never allow disputes over contentious traditional practices to turn on the fact that the practice is traditional. “We’ve always done it that way” is a bad answer to nearly any question. If tradition is to be elevated to a virtue, let us at least view tradition in America as, in John Stewart’s recent words to Bill O’Reilly, a “progression of individual freedoms,” a view which more accurately comports with the history of this country.

Of course, we are all not “religious people” .. “presuppos[ing] a Supreme Being” either. And despite that “we” never really were, the percentage of self-identifying as atheists or agnostics, along with the percentage of non-monotheistic religious adherents, has grown over 200 years, making this a more pluralistic and disparate country, whose available common ground has correspondingly shrunk.

Despite that it’s been with us for so long, legislative prayer remains constitutionally problematic for reasons belonging to both the religious and those who, like myself, would prefer that religion and politics not be so blended.

Many religious people feel, with reasonable justification, that non-denominational legislative prayer, stripped of its religious trappings and watered down to its most general pieties so as not to offend any constituent, is not religion at all, but a political compromise… venturing away from penultimate truth instead of approaching one. Not all religions subscribe to the interfaith club, a club which obviously favors voting members over abstainers, despite that the members deign to speak for the lot of us.

For the non-religious, the opposition to legislative prayer largely stems from the fact that God does not appear on the ballot when one elects a judge, councilperson, congressperson, senator, or president–one elects a candidate who presumes to represent everyone, a constituency which includes the godless and members of non-monotheistic religions. A legislature that begins each day with prayer signals to religious minorities (including the non-religious) that they matter less. This view retains an unfortunate degree of political capital–in the recent race for the North Carolina senate seat, incumbent Republican Elizabeth Dole ran a desperate ad accusing Democratic challenger Kay Hagan of being an atheist … and Hagan responded by suing Dole for defamation. It’s difficult to matter less when you belong to a class which politicians outrace each other to demean.

Not all legislatures begin with prayer, and some legislatures have even compromised by convening sessions with a moment of silence, in an effort to minimize the pool of potentially offended. That wasn’t good enough for a resident of Marion Country, Georgia, whose city council had recently amended its procedure to just such a compromise:

A 70-year-old resident spent Monday night in the Marion County Jail after praying aloud during a moment of silence at the City Council meeting.

[...]

At the onset of the meeting, Mayor Rob Thoman read a statement of disorderly conduct and stated anyone who talked out of turn would be in violation of the statement.

During the moment of silence, [Charles] Lynch began reading a prayer out loud; when asked to be quiet, Lynch began to pray louder, according to the report.

Lynch was then asked to leave the meeting. He refused and grabbed a chair, prompting Southport assistant Chief Mark Myers to forcibly pry Lynch’s hands from the chair, according to the report.

For those who would claim that legislative prayer does not violate the Constitution, how do you reconcile the Supreme Court’s diminishment of legislative prayer as a mere historical acknowledgement with Charles Lynch’s martyrdom when the city council tried to sever religion from its civic identity? The entrenched centuries-old persistence of legislative prayer to this point served as a signal to Christians that their beliefs matter to this country above all. Whenever a city council or court seeks, in the spirit of equity, to address the interests of all its constituents, some Christians recoil at the loss of their favored nation status and cry persecution at not being permitted to impose their views on everyone in a civic setting. “Witnessing” is a central tenet of many strains of Christianity, but the government need and should not be its agent.

Non-sectarian, non-denominational legislative prayer was an early attempt to compromise and temper the plurality of religious views held during the First Congress, but our plurality has grown too broad for such prayer to be fairly representative of the electorate. Permitting random clergy from a variety of faiths to lead in prayer is an anemic solution, as such clergy are still required to adhere to supposed non-sectarian guidelines.

Robert J. Delahunty pointed out in his article, Varied Carols: Legislative Prayer in a Pluralist Polity [pdf], that there are three basic problems with non-sectarian prayer:

(1) non-sectarian prayer is illusory, because “every prayer, by its very reflects and conveys a particular system of beliefs about the nature of ultimate reality, and is thus ‘sectarian’“; conversely, attempts to strip prayer of its natural sectarian characteristic results in, at best, a “sterile litany virtually devoid of true religious meaning“;

(2) the demand that prayer adhere to non-sectarian guidelines discriminates, perversely, against religious adherents by requiring that they conform the religious message they speak and hear in civic settings to civic requirements;

(3) in attempting to escape the problem of establishing religion by mandating only non-sectarian prayer, the cure has itself become the problem, as non-sectarian prayer is evidence of “civil religion”–a hybrid of the least offensive aspects of most religions, weighted heavily toward Christianity, and a growing religious orthodoxy of its own.

I would agree with all of the above but go farther and argue that we have already established Civil Religion, in clear violation of the Constitution. It is an inadvertent religion formed and shaped by those who would circumvent the establishment clause, not by their intent but nevertheless by their actions. This inadvertent religion effectively contends that its God takes a specific, favorable interest in our country, a view that is not reflected in the text of any religion that comprises the basis for civil religion in the United States. Indeed, the conceit runs contrary to Christianity’s New Testament, whose humanistic tenet that one “love they neighbor” would be qualified by civil religion as applying on a basis relative to manmade geographical constructs.

Though inadvertent, civil religion is as real as Charles Lynch was led to by this country’s history and tradition to believe it to be. But far from saving it from violating the Constitution, as Marsh would have it, history and tradition only serve to compound.

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