ADF Senior Counsel Brett Harvey writes:
Gazing across the street at Independence Hall in Philadelphia, I was struck by the irony. It was an overcast January day as the city was digging out from a snow storm. To quickly glance at the clock tower of this landmark was to see the spire shining brightly against a pale blue sky. However, upon closer inspection the illusion was revealed. I wasn’t looking at the building at all; rather I was staring at an image of the building printed on a tarp used to cover the scaffolding that surrounded the clock tower. Independence Hall was being “updated” behind the facade.
Where is the irony? It was ironic because I was in Philadelphia to witness an attempt to “update” another American icon, the U.S. Constitution. Ironic because across the street, between the National Constitution Center and Independence Hall sits the federal courthouse where the 3rd Circuit Court of Appeals heard oral arguments about the constitutionality of opening a public meeting with a prayer. Ironic that such a challenge would be heard within earshot of the Liberty Bell.
It was on September 7, 1774, in Philadelphia that the First Continental Congress opened with a prayer delivered by the Rev. Jacob Duché. Not even two years later the Continental Congress stepped out of Independence Hall and declared that we citizens have inalienable rights endowed by our Creator. Ironic that the first congress, in 1789, finalized the language of the First Amendment just three days after they authorized the appointment of paid chaplains to deliver prayers before each session of congress, and now the court is deciding whether that same First Amendment prevents a school board from opening its meeting with a prayer.
The irony would be amusing if the consequences were not so grave. Unfortunately, this is not an isolated incident. Right now, three of the eleven Federal Circuit Courts of Appeals, have pending challenges to the historic American tradition of opening public meetings in prayer. The next 12 to 18 months may well shape the future of public invocations.
In 1983 the U.S. Supreme Court pointed to the history of this nation and ruled that prayers given before the Nebraska Legislature were entirely constitutional, even though the state had paid the same chaplain to make expressly Christian prayers for more than a decade. It is the only time the Supreme Court has directly considered the validity of prayer before public meetings. If all three appellate courts allow invocations to be given consistent with the dictates of the prayer giver’s conscience, this historic tradition will be safe – for now. But if the courts split or decide that the government needs to dictate the content of prayer, this legal issue will be ripe for review once again by the Supreme Court.
The most recent federal appellate court to take up the issue did so in 2008. In that case, the 11th Circuit determined that prayer givers were free to pray as their conscience leads them. However, if the secularists who brought suit in the 2nd and 4th Circuits get their way, the government will be forced to censor invocations and dictate what constitutes an acceptable prayer. Ironically, if the courts come to that conclusion, local governmental bodies will not even be permitted to recite the prayer uttered by Rev. Duché at the First Continental Congress because it will be considered “too Christian” and, therefore, unconstitutional. If the atheists succeed in the 3rd Circuit, the school board will be forced to abandoned the time honored tradition altogether.
Despite clear historical and legal precedent, the legal fight continues. Recently states, counties, and towns across the U.S. have received letters from activists groups like the ACLU and Freedom from Religion Foundation demanding that invocations before public meetings be stopped or censored. This campaign of fear and intimidation has made an impact. In January the Senate for the State of Hawaii abandoned public invocations after being intimidated with the threat of a lawsuit. The Senate correctly reasoned that they shouldn’t try to control how people pray. However, they then took a wrong turn and concluded the only way to protect the speech rights of invocation speakers was to silence them.
The arguments and demands in activists’ letters are like the image draped on the scaffolding of Independence Hall. At first blush, their arguments appear to be constitutional, but a closer inspection reveals they are a mere facade, intent on hiding the work being done to reshape an American icon. Beware! They are not simply restructuring a historical artifact made of brick and mortar; they are attacking the very foundation upon which this country was founded.
As I left the courthouse that day, I walked past the image of Independence Hall and stopped for a moment before a statue commemorating religious liberty. Hopefully, the memorial is not simply a reference to a former day, but a reminder of how important religious liberty is and why we need to be ever vigilant against those opposing forces that would destroy it.
- - Know the history of the Constitution so you will not be fooled by a facade that simply resembles this foundational document.
- - Be alert! If a government body in your area is challenged to censor prayer or abandon the practice of opening public meetings with prayer, call the Alliance Defense Fund at 1-800-TELL-ADF or fill out the online legal request form.
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