Saturday, December 03, 2005

Kibozing

Back in the day, there was one named Kibo. He achieved fame first by using the power of Unix to find every occurrence of his nom de guerre on any Usenet forum. This practice of searching for one's own name came to be known as "kibozing," and one who practiced it was a "kibozo." Kibo's omnipresence inspired a religion, Kibology, and its own newsgroup, alt.religion.kibology. The FAQ answers important questions like:

WILL I GO TO HELL IF I MAKE PRANK CALLS TO "DIAL-A-PRAYER" LINES?

Not if you also call a prank line and say a prayer.
While kibozing Google News, I came across a relevant article about a cousin who serves as a Lutheran minister in Indianapolis.

Some disinclined to give House prayer:
Aaron Rosenau, a Lutheran pastor in Indianapolis, and Mark Overmyer, formerly a pastor in Portage, said they probably would decline future invitations to pray if they couldn't do so in the name of Jesus or Christ, as directed by the court.

So did Clarence Brown, a layman at Second Baptist Church in Bedford. Samuel Bush, pastor of the Assembly of God church in Jasonville, called the court's decision "bad" but said he would return to the House to pray if asked.

"It bothers me, but I wouldn't refuse to participate," he said.

U.S. District Judge David Hamilton ruled Wednesday that official prayers in the House can't invoke Christ's name and must be nondenominational.

He ordered House Speaker Brian Bosma to instruct clergy or others giving the opening prayers at daily House sessions that they must not be used to proselytize or to advance or disparage any one faith or belief.



Rosenau, assistant pastor at Our Shepherd Lutheran Church in Indianapolis, was identified in the lawsuit after he offered a prayer in the House in January.

He said he tried to be sensitive to other beliefs in his prayer. But he closed with the words, "Gracious Father, King of all creation, in the strong name of Jesus our Savior."

"My prayer was not intended to proselytize or convert people," Rosenau said. "I was hoping what I said was inclusive."

Rosenau is not critical of Hamilton's decision. He said he read it thoroughly and understands the idea that the official House prayer becomes "government speech" and that the Constitution protects the rights of minority religions.

"I do believe that we can still offer prayer on behalf of our country and those who are working for our country without mentioning Jesus," Rosenau said.

But he's not sure he wants to be the one to do it.

"I personally would have a hard time praying without mentioning Jesus because I believe when we are invited to pray by God, he invites us to do it in the name of Jesus," he said.
I guess I have to get in touch with him to chat about it. I'm not sure I know how different his prayer would have to be, so I don't know how he'd make the decision to pray in the statehouse if invited back.

I do appreciate his last sentence though, and the whole process raises genuinely tricky questions. I expect that the decision will ultimately be overturned or modified, with the understanding that a wider array of religious groups have to be invited. It's like the idea of having a nativity scene and also putting up a menorah and giving the widest possible array of other religions access to the same display area. In principle, a vociferous prayer to Jesus one day followed by an equally vociferous prayer to Allah the next day ought to fall into the same logical category.

The problem with the ruling as it stands is that it allows some religious expression and not others. A Christian prayer is offered to Jesus, and no one disputes that, not even the judge, who wrote that his ruling:

might make it difficult or even impossible for some clergy or believers to offer official prayers
which seems like it raises a big First Amendment flag of its own.

I doubt many atheists get offered a chance to pray, so the practice is certainly an endorsement of theism broadly speaking, and the judge isn't taking issue with that. I suppose that deists and pantheists could offer their prayers, but most of the traditional Christian prayers offered in these contexts are of explicitly theistic form. One couldn't require the prayer to encompass all possible religious beliefs, since to do so would require that the one praying either refrain from speaking certain ways or to say other things that they do not think. Either way, you're in First Amendment trouble.

On the other hand, the statehouse isn't a church and prayers offered there need to be representative of the entire state, not just one denomination. I've seen my cousin preach, and he brings a particular passion to it that would be hard to sustain if you're always looking over your shoulder. He prays to Jesus Christ and he does so in a way different from what someone belonging to Catholicism, Baptism, Methodism or any other Christian denomination would recognize. There's no way to stop that and there's no way that's Constitutional all on its own.

The solution I suggested above has problems, too. If you have some scheme to balance the prayers between different denominations, you still have a problem of endorsement and bias, at least potentially. No one seriously thinks that Hannity and Colmes is anything but a conservative show even though the hosts are balanced on paper. To balance between religious views is even more complicated because there are more axes and more names to toss around

And how do you balance? Equal time? Weighted by proportion of the population? And equal time for whom? Do you give rotate through the religions: Jews, Muslims, Christians, Buddhists, Taoists and Hindus, then back to Jews? Or do you do it by denominations? Does each Lutheran Synod get its own day? Or should all the Protestants get lumped together? It's legitimately tricky.

The real solution, and one which would never actually get implemented, is to let the prayers happen in chapels in the statehouse or churches nearby, and let the business of governing happen in the statehouse chambers. In the end, there's no fair system for choosing any one religion to represent an entire State, even for a day. Our country is great because of its diversity, and we should celebrate that diversity, not try to paper it over.

For more, start with this post from the Indiana Law Blog, which links to the judges ruling, and then scroll through the main page for the followups.

Update: On reading the ruling, I'm reminded that "A court order barring all prayers would run contrary to Marsh v. Chambers." Marsh holds that the prayer at the opening has a long and distinguished history, and that it is "simply a tolerable acknowledgment of beliefs widely held among the people of this country."

The comparison to Marsh ultimately muddies the waters. In Marsh, there was a single chaplain who had served for decades. He was Presbyterian and remained so for 16 years and he operated in the Judeo-Christian context. However, the Marsh ruling notes in footnote 14:

Palmer characterizes his prayers as "nonsectarian," "Judeo Christian," and with "elements of the American civil religion." Although some of his earlier prayers were often explicitly Christian, Palmer removed all references to Christ after a 1980 complaint from a Jewish legislator.
In Indianapolis, the prayer is offered by a different person each day according to that person's religion. The failure to invite more than one rabbi or more than one imam is problematic, but offers more diversity (at least two days worth) than Nebraska did in Marsh.

The issue then is solely how often the specific doctrine of Christianity is asserted. Challenging the prayers on the basis of their near total Judeo-Christianity would not get past Marsh, nor would the mere fact of the numerical dominance of the Christian (or Judeo-Christian) clerics. The issue, as Judge Hamilton writes is that "The permissible ground for official prayer under Marsh was the common ground shared by Judaism and Christianity and did not extend to the divinity or lack of divinity of Jesus of Nazareth."

Brennan's dissent in Marsh is compelling, as well. He points out that the Court shows no sign of crafting a principled basis for upholding prayer, they simply hold that it is acceptable, and craft the judicial logic around that finding. As Brennan writes, "I have no doubt that, if any group of law students were asked to apply the principles of Lemon to the question of legislative prayer, they would nearly unanimously find the practice to be unconstitutional."

Just as Brennan notes that the religious opening of the session lead to controversy in Nebraska, Judge Hamilon cites at least one instance where legislators walked out of the chamber in protest over a particularly overt "sectarian display." It is precisely these sorts of conflicts, where personal and unchangeable religious attitudes come into conflict that the FIrst Amendment helps to prevent. Where these prayers offered outside of the official place of business, legislators would be less likely to feel like statements contrary to their beliefs were being made in their names and on their personal behalf.

I'd say that the money quote is: "Certainly no court decision upholds a practice of legislative prayers so consistently and systematically sectarian as that shown by the evidence in this case."

I suspect that an occasional mention of Jesus would fall into the category of de minimus, and that pro forma invocations, such as my cousin's concluding with "in the strong name of Jesus our Savior" would not trouble the Court except that they are so common across the various people offering prayers.

The fault for that, the ruling indicates, lies not with the people praying, but with the Speaker of the House, for failing to supervise process, to establish and enforce clear standards beforehand.

Undoubtedly, the Christian Right will go loony over this, but wrongly so. Hamilton threaded the needle, respecting existing precedent while still putting forward a coherent an easily applied ruling and injunction.