Maybe It's Time To Concede This Doesn't Work

Our constitutional jurisprudence surrounding legislative prayer is a two-step dance. In the first step, the judiciary tells legislatures that they can have prayers so long as the process for selecting them is not biased with respect to particular denominations or sects. In the second step, legislatures do everything they can to be biased with respect to particular denominations and sects.

The latest remix of this everlasting beat is a 4th Circuit decision in Lund v. Rowan County, where a county commission simply had its commissioners choose the prayer leaders it preferred -- unsurprisingly, leading to an overwhelmingly Christian bent. Ian Millhiser has commentary, but I'll be honest and say that I'm not convinced the decision is obviously wrong under either SCOTUS or 4th Circuit precedent. Indeed, its not even the worst 4th Circuit legislative prayer decision since the inception of this blog -- a distinction still unquestionably held by Simpson v. Chesterfield County Board of Supervisors.

The problem is that the demand for religious neutrality contained in step one founders upon the obvious fact that the upshot of step one is that legislatures might have to admit prayers by religion groups they dislike. Which means they do everything they can to channel who gets to say the prayers, which means that the "neutrality" principle immediately collapses.

It's not that there is a conceptual incoherence to the idea that legislative prayers are permissible so long as they do not discriminate in favor or against a particular sect. But it is clear that many if not most legislative bodies aren't really willing to pay that piper -- admit prayers from Jews and Muslims and Hindus and Wiccans and Satanists. And so perhaps its time to concede that the doctrinal rule we've set up just isn't going to work. There are plenty of opportunities to pray without relying on bureaucratic set asides, and some of us don't need government-sponsored training wheels before we feel secure in our faith.