In the supreme court, the religious wars continue. This term the Court is asked to decide whether the city council of Greece, New York, may open its meetings with prayers from local clerics. The clerics, as is their wont, have been praying according to their religious faiths, which in most cases is Christian.
I’m not saying that’s how I’d pray. I’m a lawyer, and we do things differently. We cut deals. We see people of different faiths at a meeting, and we’d say “Timothy, you’re a Catholic; and Bernie, you’re Jewish; and Borat, you worship the Hawk. But we’re all against sin, right?” We go for the lowest common denominator, you see. But priests and ministers, they do things differently, God love ’em.
So the problem doesn’t go away easily, and it illustrates how two back-to-back provisions of the First Amendment, which once existed in harmony, are now in tension with each other. The First Amendment guarantees the free exercise of religion, and also bans the establishment of a church. The Framers didn’t see any conflict between the two. When they wrote that “Congress shall make no law respecting an establishment of religion,” all they thought they were doing was ensuring that the national government wouldn’t be Episcopalian, say, or Congregationalist. Not that there was much chance of that. And when they provided that the right of free exercise of religion should not be prohibited, they didn’t foresee a day when public prayer might trench on the establishment clause.
Yet here we are. As the state expands, it does things that formerly were handled by religious institutions, so as to put the two in competition. The idea of what constitutes establishment has also expanded, while the concept of free exercise has shrunk. A priest blessing a public meeting establishes Catholicism; an orthodox photographer who refuses to take wedding pictures at a homosexual marriage is not really exercising his religious beliefs.
The most brilliant legal minds have failed to resolve these conflicting claims—until now. Without false modesty, I think I can claim to have done so, in a manner that should satisfy nearly all sides in the debate. I know just how prayers might be offered at public meetings, without offending partisans on either side.
First, I disclaim any appeal to the easiest of solutions: prayers to Allah. For while the liberal holds little affection for religion, he wouldn’t be caught dead offending militant Islam, if only because he might be caught dead if he did so. As a lawyer, this seems to me a simple solution, one increasingly adopted in many countries. I acknowledge, however, that there are some members of the other two Abrahamic traditions who might think otherwise.
Second, I also recognize that it won’t suffice to require the clerics to stick to safe, secular themes. In not a few churches, sermons don’t sound much different from Washington Post editorials. In such cases, “Just tell us what you talked about last Sunday, pastor,” should do the trick. Let’s hear about global warming and the duty to sign up for Obamacare. Maybe a few jokes about the Chicago Cubs.
Yet here again, some recalcitrant clerics will likely stray onto unsafe denominational territory, and with that in mind let me offer my own, immodest proposal to bring an end to the religious wars.
The Constitution is a longish document, and it’s important to understand that only legal unsophisticates would give every part of it equal weight. Take the Ninth Amendment, for example: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Robert Bork didn’t know what that meant and compared it to an inkblot. And for liberals, the idea that the Ninth Amendment has some teeth and might constrain a benevolent government is simply heresy. When reading the document from a contemporary perspective, then, one needs “living constitution” eyeglasses that highlight some provisions while obscuring or erasing others, such as free exercise rights.
Free exercise rights aren’t an inkblot, of course, but at the same time they’re not to be thought to stand on the same constitutional grounds as other rights, notably the First Amendment’s guarantee of freedom of speech. Our free speech rights permit Americans to voice their political views without fear that doing so will put them in jail. Oh, sure, they might be audited if they’re conservative, or fined for disregarding campaign finance laws, but they won’t be put in jail, and we can be darned proud of that!
Free speech rights also protect pornography. In case you haven’t noticed, there’s a lot of it around. The porn industry, centered in the San Fernando Valley, is bigger than the Hollywood film industry on the other side of the Santa Monica Mountains. And it’s all constitutionally protected. At this point, pornographic speech enjoys virtually the same constitutional status as political speech. In the real world, it’s even better protected, since pornographers don’t get audited by the IRS and their marketing efforts don’t run afoul of campaign finance laws.
You see where I’m going with this, right? Since religious speech doesn’t enjoy the same constitutional protection as pornographic speech, clerics might prudently wish to lace their prayers with obscenities. A few F-bombs, dropped strategically here and there, might go a long way towards immunizing a prayer from constitutional attack. I daresay a few timid souls might object to a blessing that sounds like a rap video, but perhaps they’ll think twice when they recollect that no one has ever accused 2 Live Crew of establishing a religion.
Then there’s performance art. When stripper Darlene Miller took off her clothes at the Kitty Kat lounge in South Bend, Indiana, she probably didn’t know that she was exercising her First Amendment rights, that the “erotic message” was constitutionally protected (so long as she wasn’t entirely nude). Yet that’s what our courts tell us.
Some people will say that I’m proposing that Lady Gaga be asked to deliver public prayers. Not in the least! A Hooters barmaid or football cheerleader would work just as well. And could you for a second imagine a constitutional scholar or the ACLU objecting to a prayer offered by a go-go dancer?
What’s needed is a sense of perspective, the ability to distinguish between the different levels of social harm. Anti-social behavior comes in different forms, and some are worse than others. Oh sure, there are rapes and murders and that sort of thing, but when you get right down to it, few things are as troubling as the effort to establish a religion through prayers at town council meetings.
But then that’s why we have a Supreme Court, isn’t it?