You Don't Have a Prayer

One issue that's not being discussed much at the moment is what's at stake with our federal courts. Some federal judges are now telling pastors and priests what they can and cannot say during prayers. And some of it is happening in Indiana — the May 6 primary state.

While articles in law reviews and scholarly journals are often dry and academic, some point out legal issues actually impacting the lives of people. Ken Klukowski's article in the Georgetown Journal of Law & Public Policy, "In Whose Name We Pray: Fixing the Establishment Clause Train Wreck Involving Legislative Prayer," is one of them.

When clergymen and clergywomen offer prayers to open daily sessions of Congress, statehouses, school boards, or what have you, it's called "legislative prayer." Opening governmental sessions with such prayers goes back hundreds of years, before America was founded.

Yet now certain federal judges in various states are forbidding certain things to be said in prayer, with one even issuing an injunction against the Indiana House of Representatives to not allow any pastor or priest to utter the name "Jesus" in their prayers.

The Supreme Court upheld legislative prayer in the 1983 case of Marsh v. Chambers. In Marsh, the Court held that such prayers were constitutional so long as they did not evangelize or advance a particular faith, or disparage other faiths.

Since 1983, society has become less tolerant of public expressions of faith in general and Christians in particular. So in recent years, various groups have sued, claiming that when a Christian names Jesus Christ in his prayer it advances Christianity in a way that violates the Marsh rule.

The Establishment Clause was written to protect people of faith from the federal government. Many courts continue to use it as such. But for others, it has increasingly become a club used to intimidate people of faith into silence and drive them from the public square.

Some courts, in Virginia, Georgia, Louisiana, Indiana, and other places, are examining whether prayers naming Jesus are sectarian prayers advancing Christianity. Some of them find that they do, and are stopping these prayers.

What's appalling about this is what it means for Americans, both in Indiana and elsewhere. As Mr. Klukowski documents, almost 80% of Americans support invocations at public school ceremonies, and even more are comfortable with prayer in settings such as government functions. The idea of publicly asking for divine blessing and acknowledging our creator is shared by the vast majority of Americans.

This is not about forcing religion on people. This is about whether your spiritual leader can participate in your local community without Washington, D.C., interfering. This is about your local school board asking your pastor to give a prayer without a federal judge, telling your pastor what he can say as he offers his prayer.

Every federal judge is appointed by the president, and usually shares that president's philosophy on the law. The judge who outlawed saying Jesus in prayers in Indiana, Judge Hamilton, was appointed by President Clinton. When the Seventh Circuit appeals court reversed the trial court on a 2-1 vote, the two reversing judges where appointed by President Reagan, and the one who sided with Judge Hamilton was also appointed by Mr. Clinton.

The Clinton judges are willing to impose a national secular agenda on society, while the Reagan judges are willing to say it's none of the federal government's business to outlaw saying Jesus when that name is spoken by an ordained clergyman during prayer.

Both Senators Clinton and Obama promise to appoint judges like Justice Ginsburg, former chief counsel to the American Civil Liberties Union, to our courts. Senator McCain commits to appointing judges like Justices Roberts and Alito.

The last thing America's founders would ever approve of would be federal officials listening in to prayers, ready to forbid certain clergy to participate if they refused to allow the government to dictate to them that they could not name their deity. As Mr. Klukowski writes in his closing paragraph, "preventing federal courts from involving themselves in the wording of any prayer goes to the heart of what the Framers wanted the Establishment Clause to achieve."

Amen to that.

Mr. Blackwell, who has taught some courses at the University of Cincinnati Law School, is a contributing editor of The New York Sun.