In the News

Don’t Miss the Importance of Legislative Prayer in the ‘Mowomenment’

January 6, 2021

By Jeremy Dys, Special Counsel for Litigation and Communications

Rep. Emanuel Cleaver (D-MO) recently made headlines that may follow him for the rest of his political career. As Cleaver ended the traditional invocation before the commencement of the 117th Congress, he proffered a neologism that made satirists everywhere rejoice. In addition to ending his prayer with the ecclesiastical “amen,” the congressman added “awoman” in an apparent effort to appear gender-neutral.

Such overt virtue-signaling was silly to many, and was met with near universal eye-rolling. Still, “amen” is a useful word used by Christian and Jewish worshipers for centuries to end their prayers. It is derived from ancient Hebrew, meaning “so be it.” That three letters appear in sequence to reflect a word used to identify gender is less the work of the “patriarchy” than it is the work of religious patriarchs over the millennia.

Armchair humorists are right to wonder whether Disney+ will now feature the “Womandalorian”, or if the 117th Congress will require bill markups to be styled “awomendments.” Yet we should not lose sight of the unbroken, historical moment: An elected member of Congress—himself an ordained minister of the Methodist Church—prayed inside the U.S. Capitol as Congress organized itself and set to work.

Some have challenged the legality of such legislative invocations over the years. Despite these challenges, courts have routinely noted the Constitution’s approval of legislative prayers—by chaplains, volunteers and even elected officials.

The U.S. Supreme Court, as recently as 2019, reaffirmed the place of religion in public life. In The American Legion v. AHA, the justices pointed to the very first Congress opening its session in prayer “as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans.”

Years before, in 1983, Chief Justice Warren Burger established that very principle in Marsh v. Chambers. In evaluating the constitutionality of the invocations offered by the Nebraska Legislature’s chaplain, Chief Justice Burger noted that such actions are “deeply embedded in the history and tradition of this country” and have “coexisted with the principles of disestablishment and religious freedom.”

Rather than threaten the republic, as some have suggested, mixing religion in the official life of American business, Burger explained, is far from “an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country.”

Just six years ago, in Town of Greece v. Galloway, litigants presented a new question concerning the practice of legislative prayer to the U.S. Supreme Court: Can legislative prayers be overtly sectarian in nature? Justice Anthony Kennedy answered in the affirmative for the Court’s majority: “Once it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”

That means that Rep. Cleaver was well within his rights to end with “Amen and awoman,” just as much as he was within the bounds of the Constitution by addressing his prayer to “Eternal God” and making his requests in “the name of the monotheistic God” and the “god known by many names, by many different faiths.” Others may have been less generic in their invocations, but if that is what binds the conscience of Rep. Cleaver, the First Amendment blesses it.

Should that change just because Cleaver is an elected official? At least the U.S. Court of Appeals for the Sixth Circuit does not believe so. In Bormuth v. County of Jackson, the Sixth Circuit explained that it was “insignificant that the prayer-givers in this case are publicly-elected officials.”

As Judge Jeffrey Sutton explained in a concurring opinion, “So long as the prayer-giver does not try to coerce anyone into adopting their faith, so long in other words as the individual gives an invocation, not an altar call, I see no meaningful role for judges to play.”

Rep. Cleaver may have earned a chuckle or two for his choice of words. Others will raise serious theological disagreements with the object of his invocation. No doubt his prayer will be satirized and featured in future memes. That simply shows the strength of the First Amendment as more speech meets his speech. It also beneficially reaffirms the First Amendment’s commitment to religious liberty and the appropriate welcome legislative prayer ought to receive in the public square.

Headlines aside, Rep. Cleaver in the very least maintained a prized and unbroken tradition of welcoming religion into the House of Representatives. That alone deserves our collective “amen.”

Note: This article was first published on Newsweek and is re-published here with permission. The article presents the main points of an op-ed published in Newsweek. This work was authored by Jeremy Dys. The full article can be found on the Newsweek website, here.

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