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.

Prayer Invocation at City Council Meetings

The other day, a good friend and ex-roommate from my yesteryear, now living in Virginia, e-mailed to tell me that a city’s council meeting she recently attended began with a prayer. Ellen, married with three children, is an educated woman who’s father and father-in law are both retired Lutheran ministers. Her kids go to “bible camp” and say grace before each meal. But Ellen also understands that just as her’s and her family’s religiosity are not matters for governmental intrusion, so too should municipal council meetings not be religious affairs. So she was genuinely baffled at how such an intrinsically governmental event could begin with a prayer without violating the Constitution, and asked my advice.

Since this topic arises all the time in every region of this country, I thought I’d discuss it here, and lay out both the law and my thoughts on it.

The law begins and mostly ends with the Marsh v. Chambers case [463 U.S. 783 (1983)], in which the Supreme Court found constitutional, by a 6-3 margin, the practice and funding of chaplains to lead legislative sessions in non-denominational prayer. The Court’s reasoning was explained thusly:

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).

Chief Justice Burger’s decision can be summarized in short, “We’ve always done it this way.”

The idea that “heritage” or “tradition” are somehow innately virtuous terms is an appealing notion if you’re lucky enough to be on the right side of the particular bit of history being echoed. And obviously, given that we’re a nation which has discarded many “traditions” in deference to evolved outlooks on race and gender, and even Burger admits to needing something more:

Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns.

Burger then goes on to bolster his tradition argument with a tautology, by asserting that the very fact that some people have been historically opposed to legislative prayer must mean that previous generations had seriously considered the issue and correctly concluded its constitutionality. Burger offers no evidence whether previous generations had in fact carefully pondered the constitutionality of legislative prayer, nor attempt to explain why consideration in and of itself should even matter in considering constitutional questions.

And there is good cause to suspect the constitutionality of legislative prayer.

The Constitution’s Bill of Rights is specifically intended to preserve the rights of minorities against the majority’s unconstitutional urges. “We” do not all presuppose a supreme being. I certainly don’t, and to this day flinch when I first walk into a courtroom and look up to see, above the judicial bench a plaque reading “In God We Trust.” That plaque, found in every courtroom I’ve ever walked into, is implicitly advising me that the Court shares a value system with a majority of Americans, but not me. And it’s only small comfort that any judicial decision which favored religious virtue over reason and precedent would be flatly unconstitutional; because then why else is there a need to assert so emphatically (but for those four words, courtrooms are otherwise bare) a principle which, by law, could not be cited by the court as a basis for its deciding any matter whatsoever?

I’ve never attended a municipal council meeting which began with a prayer, but I imagine I’d feel similarly excluded as when I enter a courtroom. A municipal council meeting comprised of adults considering policy questions affecting all local residents should not be exclusionary in any sense. Any prayer, by its nature, whether explicitly sectarian or non-denominational, excludes those who do not share the expressed sentiment, even if the stated purpose of the prayer is to “include.”

Moreover, I’ve always found the very concept of “non-denominational” prayer to be something of a fallacy, because the prayers which are most often fought over in court are by form and nature, largely Christian. And it is largely evangelical Christians who most fervently argue against the existence of a wall separating church and state, and who are most likely behind any introduction of prayer to municipal council meetings, in order to both push the establishment clause’s Maginot line, and in order to gain the state’s validation and endorsement (which constitutionally impermissible, see Lynch v. Donnelly) of their religious beliefs.

A good test for just how “non-denominational” the prayer is to watch how the group factionalizes after someone protests the practice. If the prayers were truly non-denominational then the group should split along non-sectarian lines; but inevitably the loudest hue and cry from defenders is that banning the practice amounts to religious persecution. But wasn’t this about religious heritage? How can there explicitly be a non-denominational free exercise interest?

Another good test is to substitute “Allah” for “God” in the prayer and watch the fireworks–”Allah” has been specifically found by the courts to be a lingual, non-demoninational, non-sectarian reference to God, and thus constitutionally acceptable, unlike references to Jesus, which explicitly refers to the Christian deity.

If hair-splitting over whether Jesus and Allah are sectarian or non-denominational seem ridiculous, you’re certainly not alone. But the existence of such controversies are better viewed, in my mind, as evidence why the entire practice should be scrapped and viewed as unconstitutional. Legislative prayer is by nature divisive and exclusionary inasmuch as it drives a wedge, whether intended or not, between the participants, by classifying some as “us” and others as “them.”