By Seth Richardson
One of the interesting, if predictable things that has occurred as a result of Commissioner Peggy Littleton’s call for prayer at the start of meetings of the Board of County Commissioners has been the visceral and instant reaction of the radical Atheists and secularists to the notion that religion might be seen or heard in the public square.
The outrage was knee-jerk and immediate, with comments like, “Oh for crying out loud. not only an incompetent corrupt right wing Republican, but a religious fanatic to boot,” and “A good leader does not waste their time on the biggest lie in the history of the universe. The commissioners should all immediately removed from office because they are much too stupid to do any good for this city.” (We’ll ignore for a moment the fact that Littleton is an El Paso County Commissioner) And then there’s the ever-so-erudite and rational, “The Nazis had “Mein Kampf,” Chinese Communists had “Mao’s Little Red Book,” The Soviets had “Marx’s Communist Manifesto,” Cubans had the works of Che Guevara’” and American conservatives have “The Bible.”"
I could go on, and on, and on.
What’s mostly missing from this dialog is any attempt on the part of Atheists to respect or even tolerate the religious freedom of others while ensuring that the actions of the Commissioners don’t violate the Establishment Clause of the First Amendment. There’s no attempt at compromise, just radicalism and invective.
Now, it’s true that there is a Supreme Court case explicitly supporting pre-legislative religious invocations, Marsh v. Chambers, in which Justice Berger 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. As Justice Douglas observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Marsh v. Chambers, 463 U.S. 783, (1983)
But as is the case with most law, one case does not always tell the whole story, and there are a number of lower court cases, which may or may not be binding in El Paso County, that narrow the scope of what’s permissible in such invocations. What’s broadly permissible as an invocation of “God” in general becomes impermissible when one particular god, let’s say Zeus, is called out and favored by a public official.
The objections should be obvious, and that is that while elected officials are free to practice religion on their own time, they cannot do so when they are “on the clock.” The Supreme Court has set out three tests that are to be applied to the actions of government agents and agencies in the case Lemon v. Kurtzman:
The corollary question that’s of equal importance here, but which goes unasked and unanswered by both Commissioner Littleton and the secularists is when, precisely, is Commissioner Littleton, or any other government employee “on the clock” for the purposes of applying the Lemon Test.
This is actually the most important question, because Commissioner Littleton has said, “I’d like to encourage my colleagues to have, at a minimum, prayer together every Tuesday and expand it to leaders, elected officials and citizens who would like to express their blessing over the board.”
Atheists and secularists are aghast and outraged at the notion, as demonstrated above, and in the comments both on the Gazette’s news article and Wayne Laugesen’s editorial on the subject. They are circling the ACLU and Freedom From Religion Foundation wagons and are preparing to lay siege to the Commissioners, and we can expect their trebuchets to be hurling truckloads of legal papers over the walls at any moment.
But, if I may be so bold, the devil’s in the details, as is so often the case.
First, Littleton merely expressed the wish that the Commissioners “have…prayer together every Tuesday.” She didn’t say when, where or under what circumstances that prayer would occur. The inference taken by the Atheists is that it will be lead by Littleton from the dais, with the power of the County Commission invoked at the same time. That conflation of public office and private religion is what the secularists and Atheists fear, and I must agree that it is neither an unfounded nor an irrational fear.
While there is no actual “wall of separation” between church and State mentioned in the Constitution, the homily presents a visualization of the notion that government can neither favor nor disfavor any particular religion, or irreligion, in its official acts. And it is true that government agents and officials have a duty to remain strictly neutral towards both religion and religious expression in the official performance of their duties.
But it must also be noted that government also has a duty and obligation to engage in positive actions that protect the right to freedom of religion when such rights are infringed upon or threatened. This duty extends to tolerating the peaceable expression of religious freedom by citizens even within the corridors of power and halls of legislation. What a government agent may not do while on duty, a citizen may do when and where it pleases him or her to do so, so long as it’s peaceable and does not disrupt official business.
Thus, in this case, the nuances of exactly how such prayers or invocations are directed, sponsored and held are of the highest importance, and figuring out how to allow the Commissioners, and anyone else who wishes to engage in free religious expression without contravening the Constitution or violating a prong of the Lemon Test is what people of good will and tolerance do, rather than spouting anti-religious bigotry and prejudice and threatening lawsuits.
A couple of other legal principles apply here. The most important one is that private persons are not, and indeed cannot be prohibited from freely exercising their religious beliefs by government officials. The next most important principle is that public officials do not lose their religious rights merely by taking office, but they do, in this case, check them at the dais, when the business of the public gets underway. Prior to that time, however, they are acting as private persons, and they have all the rights of any other citizen to express their religious faith.
With these principles in mind, and with a willingness to find a way to accommodate the reasonable and legitimate rights of members of the public, and public officials acting on their own time, to freely express their religion, while also acknowledging and defending the principles of the Constitution that require public officials to remain officially neutral towards religion, neither advancing nor inhibiting any religious beliefs, I submit the following:
These suggestions I believe comply with both Marsh v. Chambers and the Lemon Test, and will keep the Commissioners out of trouble while fulfilling the duty of the government to protect the free expression of religion that accrues to everyone, including elected public officials.
And that, in my opinion, is how rational, reasonable people who understand the Constitution and the foundations of our Republic seek to resolve such differences; through tolerance, mutual respect, compromise and careful planning.
© 2011 Altnews