Does Congress really apply the Establishment Clause to itself?

As I mentioned in my last post, I was recently on a tour of the Congress with a group Europeans and Americans during my LSE class reunion. We had a fun time listening to the House Republicans talk about energy policy, and I'm sure the Europeans enjoyed listening to the complex and well-informed rhetoric coming from the House floor that day. (Yes, I am being sarcastic.) However, the thing that really mystified some of them was the opening prayer.

Sure, what we saw was not an official session of Congress. However, it is true that every regular business day in the Congress is opened with a prayer from the House and Senate chaplains. This has been the case since 1789. After leaving the chambers, my European friends were wondering how a prayer is permissible given that separation of church and state is part of the US Constitution. Doesn't this act violate the first amendment?

The easy answer is that while the US purports to uphold the principle of separation of church and state, our government violates it frequently. Let's not forget that public officials are sworn in on a bible or other type of religious book, our money has "in god we trust" written on it, and the public school children recite the line "one nation under god" during the pledge of allegiance each morning. (Interesting to note - that line was not in the original pledge of allegiance adopted in 1892 but was added by Congress during the Eisenhower administration in 1954. "In god we trust" was also not put on U.S. currency until around the same time). And being a non-theist means 50% of Americans would not even consider voting for you, no matter how qualified you are. So much for the "no religious test" clause of the Constitution.

(Some of my friends claimed that being too openly religious would not get you elected in their home countries. How ironic that while many European countries still have official state religions, they are in practice some of the most secular, non-religious countries in the world?)

After our tour, I did a little research on the topic of the Congressional prayer. In 1983, the Supreme Court took up this question of opening prayers during legislative sessions in March v. Chambers. The Court ruled to permit this practice under the Constitution, However, the majority decision was based mostly on the history and tradition of allowing opening prayers in Congress. In the majority opinion, Chief Justice Burger wrote:

In light of the unambiguous and unbroken history of more then 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 laws is not, in these circumstances, an "establishment" or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

This seems like a pretty weak argument to me, especially considering we're talking about a Constitutional issue and not a question of what is a desirable policy. As Brennen's minority opinion points out, the majority did not apply the commonly used "Lemon test" on issues dealing with religion. (If they did it surely would have failed.) The phrase "tolerable acknowledgment of beliefs widely held among the people of this country" smacks of majority rule trumping minority rights, the very thing the Bill of Rights was supposed to ensure against. One could easily argue that many traditional were once a part of the "fabric of our society" and "widely held" beliefs, such as slavery, racial inequality, women not voting, etc. An institution of the federal government officially invoking "divine guidance" every day is state endorsement of religion, IMHO.

So what about the argument that participating in the Congressional opening prayer is voluntary? This was indeed the point that our more conservative tour guide made. No one is forced to participate in the prayer. I personally had my head up and eyes open during the recitation at our tour. I did a little more research and found out that in 2000, the US Supreme Court ruled in Santa Fe Independent School Dist. v. Doe that even voluntary prayers led by an elected student chaplain at high school football games were unconstitutional. Justice Stevens made these remarks in his majority opinion for this case:

School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants "that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community."

As an atheist and an American, I fully relate to these words. Take out the word "school" and insert "congressional" and think of the statement in relation to the voluntary prayer lead each session by the Congressional chaplains. (Chaplains who are employed by and paid by the federal government.) To me, interpretation implies that non-religious persons are outsiders, not "real" Americans and not full-fledged members of the American political systems. This is about as clear a case of discrimination and not upholding separation of church and state as I can think of.

Oh, wait. I forgot. Congress sometimes does not apply the very legislation it passes to itself. I guess the same must be true about the Constitution now. Silly me.