Founders did not intend to abolish prayer in public spaces

Myron Moskovitz's September 6 piece Coercing Religion - Part One reignited a flame in me that I expressed back in a 2010 Daily Journal piece entitled The Founders Did Not Seek to Abolish Religion!

Moskovitz remonstrates about prayer being a part of official proceedings in our local, state and federal legislatures, and at local schools' football games, asking "Can't these guys pray at home, or in their cars? Any place where they won't annoy a captive audience of tax paying citizens who prefer to do business with their government without subjecting themselves to someone else's religious practices?" (emphasis in original)

Since in my former day job I collected taxes for the state, I'll leverage a favorite quote from Justice Oliver Wendel Holmes' famous dissent in Compania General de Tabacos de Filipinas v. Collector of Internal Revenue, 275 U.S. 87, 100 (1927) (Holmes, J., dissenting) "Taxes are what we pay for civilized society," in suggesting that we try to view officially sanctioned and annoying practices of others as just that, and try to be grateful that we can also "officially" do things we like but annoy others without the threat of official reprisal. Isn't that a "price" we pay for the freedom from real oppression that millions continue to flock here for?

Our courts are, I believe, of necessity in our tri-partied "Republican Form of government," (U.S. Const art. IV, §4), a conservative institution. That is; unlike the Legislature or the Executive, they're guided by precedent, aka history.

It was the late William O. Douglas (hardly a conservative) who said that "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952).

I don't think that's ever been overruled, and I'd bet trying to do so would stir up more of a fight than praying at public school football games! That's because, if we look to our history, our European ancestors were resourceful, some might say extremist religious people who fled what they believed was religious oppression, or were kicked out of where they were and came here to set up a new life. The worldwide sadness at the passing of, and admiration for, the United Kingdom's Queen Elizabeth II reminds me that there is tangible virtue in leaders who model tolerance as well as patience with others.

My recent attendance at California Legislative sessions where I was allowed to state my opposition to changing the name of my law school alma mater, Hastings College of the Law, reminded me that they pray at the start of each floor session, and yes, even pledge allegiance to the United States of America! It also reminds me that Congress has from the beginning, and still has, paid Chaplains to open every session. In Sacramento, the Legislators themselves lead the prayer and say all manner of things that I found to be very calming, meditative and even potentially consensus building!

And President Jefferson's "wall of separation between church and State" was in a letter he wrote, not something he attempted to get included in, let alone adopted by, the Constitution.

I still routinely catch myself wanting to impose my "correct" beliefs on others but have tried unsuccessfully to do so enough times to conclude that, to paraphrase Mel Brooks: "it's [not] good [for me] to be King." It seems best to let others make up their own minds, and if they don't like what's going on, vote with their feet. If enough others agree, the officials will get the message, and likely, as our Nation becomes more diverse, prayers will at least become more inclusive.

I anxiously await Coercing Religion - Part Two. (Appearing on Monday, Sept. 19.)

-- Kris Whitten

Retired California deputy attorney general.