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Facing a lawsuit and a complaint, on Jan. 20 the Hawaii State Senate voted to end the holding of mandatory invocations before floor sessions. The House could decide whether it will modify its invocation policy this week.

To provide perspective on the issue, Civil Beat spoke with , senior scholar of the and director of the Religious Freedom Education Project at the Newseum in Washington, D.C.

Haynes said the status quo doesn’t satisfy anybody.

“I think once the government is involved, and the Supreme Court in this case has carved out an exception and allowed government prayers, we’re always going to be fighting because it satisfies no one really,” he said.

“I mean, people of faith, deep conviction, are not happy with generic, to whom it may concern, prayers. Because for most religious people, those kinds of generic prayers are not real prayers. So it doesn’t satisfy authentic religious faith for the government to be in a position of giving prayer as long as it’s not real prayer.

“On the other side, people that don’t think their government should be involved in the religion business, they’re not happy no matter how generic you make the prayer. You know, just because it’s all watered down, and the least common denominator to whom it may concern, doesn’t cure the problem for them that the government is in the business of promoting religion.

“So therefore, we’re always going to be fighting, with one side wanting it to be a little bit more prayer and the other side, wanting it to be a little less prayer. So there’s no real good answer to that except meaningless prayers that, as I say, leave everybody feeling unsatisfied.”

The complete Q&A follows:

Civil Beat: According to the Associated Press, the Hawaii Senate is now the only legislative body not to have an invocation or maybe, more accurately, to vote to end invocations. Is that correct?

Haynes: As far as I know, every Legislature in the country opens with prayer. I have not heard of any exceptions.

Every state in the nation?

Yes.

And these invocations, are they of varying religious affiliations? Does it rotate between the religions and so forth?

Well, I haven’t done a survey of all of them, so I’m not sure. Generally, they tend to be pretty nonsectarian or generic kinds of invocations, even if they have a hired chaplain who is in charge of it. And the U.S. Supreme Court decision in () was not so much the chaplain. The court was not terribly disturbed by the fact that the chaplain in Nebraska had been there for 16 years and he was Christian and so forth.

But they did say, well look, you know he pretty much delivers prayers that are inclusive and he had invited other people to pray, so they didn’t rule that those were the necessary Constitutional factors but in dictum, in describing the case, in the opinion, the court mentioned those. So most legislatures that I know about, mostly they will follow that general pattern.

And let me make sure I understand that correctly. They hire a chaplain and the messages are generally secular in nature?

Well, not secular. But nonsectarian. They’ll be more universal. They won’t be so particular. In other words, they won’t all be praying in the name of Jesus Christ or in some other particular way. It will be more general. I don’t know how many legislatures actually hire chaplains. I think most do have a hired chaplain like the Congress of the United States, but I haven’t taken a survey.

Does the U.S. Congress have invocations?

Yes. They have a chaplain. They’ve had a chaplain since the first Congress. Which is really one of the reasons the Supreme Court upheld legislative prayer in Marsh. The Supreme Court pretty much ignored Establishment Clause precedent of recent vintage. In other words, they sort of said, “Well, we’re going to carve out an exception. And we’re going to uphold this practice,” even though you would think prayers, a chaplain paid for by the government and delivering prayers to a government function might, you know, violate the First Amendment if you look at all the other Supreme Court decisions on the Establishment Clause.

But the Supreme Court, in essence, said we’re carving out an exception. And the grounds for that, they appealed to history and tradition. They said that since the first Congress had a chaplain, or hired a chaplain, the very Congress that wrote the First Amendment, this is a long tradition, we are not going to disturb it. We are going to say that this is just part of our history and our tradition and we are going to allow it.

So Congress does have a chaplain and the chaplain has arranged for other people to come in and deliver invocations. I think a couple of years ago we had the first Hindu priest give an invocation. We’ve had an imam give an invocation. There were protests of that by some in and out of Congress who didn’t like that idea. But, generally, the chaplain gives it and it’s been going on for a way long time.

If we could turn to Hawaii now … given that the Supreme Court ruling has been in effect for nearly three decades and the fact that other legislative bodies have invocations, what do you think about what Hawaii did? You must find that striking that Hawaii is now the first state to get rid of the mandatory invocations, even though they appear to have had Supreme Court protection in this regard.

I think what the Senate did there was to say, “We’re just not going to call it mandatory.” So they’ve left themselves room to either have it or not. Well, it is unusual. It is, in many parts of the United States, it would be a political death, you know? So, I don’t know how it’s going to play in Hawaii, but I know in most of the country the Legislature would not get away with doing that and survive because this practice is very popular, I think, in public opinion.

I think what happened in Hawaii demonstrates the confusion right now about what is constitutional and what isn’t. And part of the confusion, of course, is rooted in the fact that it actually doesn’t make a lot of sense that government-sponsored prayers on a regular basis in a government setting somehow is not an establishment of religion. So, in a sense, it’s sort of grounded in an oddity, in something that’s an exception to most of how the Supreme Court has understood the Establishment Clause. It’s hard then to get it right.

What are government prayers supposed to look like and not violate the First Amendment if, in other words, they’ve already kind of violated the First Amendment to begin with? It’s been a very murky and tortured history since Marsh. You’ve had fights over, well, if the prayers are all generic and nonsectarian, does that make it OK? And some language in Marsh suggests that that’s what the Supreme Court would look for. Well, what if you rotate and you have all kinds of different prayers and they might be particular? One day in the name of Jesus, one day a Hindu and one day, and so forth — is that OK? Because it’s inclusive?

One thing, Chad, I guess we know isn’t OK, under Marsh. I think it’s pretty safe to say it would not be OK to have prayers mostly from one tradition. In other words, if a legislature had a chaplain or speakers come in day by day and it was mostly in the name of Jesus Christ that the person was praying, that’s pretty clearly not going to pass muster under Marsh and under what we know the courts look at. But, after that, it’s not clear what the rules are.

Some people argue — people who don’t think legislative prayer should be there to begin with because they think it’s an establishment of religion — they argue, well, at least it should be nondenominational or nonsectarian or generic. You know, it should not be particular. So that at least it’s more inclusive than prayers that single out a particular religion. Others argue, well, as long as you have a laundry list of prayers, a rotating group of people coming in with different prayers, that should be OK because that’s another way of signaling that it’s not favoring one religion, it’s including people.

This has gotten to be very complicated in court cases. For example, here in Virginia, we had a fight in Chesterfield County, I think it was, the County Commission and prayer system there, so what they did, is they went to the phone book essentially and they had a list of local religious leaders who were going to come in and give the prayers and they thought, well, that’ll cure the problem. But then a Wiccan came along and said, “But I’m not on the list. I want to be on the list.” And Chesterfield County said, “We’re not putting you on the list. I’m sorry, we’re not going to do that.”

So she — I think it was a she — sued and the Fourth Circuit, eventually it got all the way to the Fourth Circuit Court of Appeals, and the Fourth Circuit said, “Chesterfield County doesn’t have to include the Wiccan because they’ve made a good faith effort to be inclusive of many of the groups in the community and they don’t have to include everybody to at least please us,” for what the Fourth Circuit considers Constitutional. That’s how bizarre it gets. On the other hand, a City Council, I believe in South Carolina, a few years ago, this guy on the Council, he wanted prayers in the name of Jesus and they said, “We’re not going to do that every time,” and he sued and he eventually lost, the Court saying well, you know, that would be going too far to promote a particular religion over all others.

A lot of these fights (are) just never ending. Because if you have a sort of oddity to begin with, that is, you know you’re trying to sort out what kind of government prayer is not really government prayer, it’s always going to be kind of difficult to draw a line. Prayer is prayer, after all. So, we don’t know exactly. The ACLU in Hawaii may say to the Legislature if you have so many prayers in the name of Jesus, that’s a violation of the First Amendment, you can’t do that. But, we’re not really sure exactly whether that’s correct or not. It certainly would be correct if most of the prayers, I think, are in the name of Jesus, they’re probably right.

But what if the Senate had rotating prayers? Some Christian, some Jewish, some other groups, that might be fine. In some areas of the country, the 11th Circuit, down South, that’s been upheld as something that’s OK as long as you rotate and try to be inclusive. Some courts will say that’s fine, that works. Other courts say no, we want to see it nonsectarian. We don’t think the Supreme Court meant you could bring in different prayers, it meant just keep them all kind of generic. We don’t know.

You mentioned the rotational model. The Hawaii Senate actually considered the rotational model and decided to reject it on the advice that it might be too risky, along the lines of what you were saying, inviting lawsuits from Wiccans and whatnot. Is the rotational model something that, did I understand you, is being adopted?

Yes. The 11th Circuit decision said that would be fine and upheld that. But it is more risky. I think that would be fair to say. The general trend in the courts is to signal that legislative prayers should really not prefer a particular religion over others. And though the rotating model can be argued that is the outcome of that model, because you have a whole bunch of different religions involved, it’s probably more subject to challenge than if the prayers are just more general all the time. Looking at all the cases, I would say that’s probably the safer approach. But I don’t think anybody can say honestly that we actually know where the line should be drawn — except we know they shouldn’t be everyday sectarian in the name of a particular religion. We know that much.

Is the rotational model being used by any state legislatures that you know of?

I don’t know of one that uses it. I know that people are invited in by the chaplain who’s responsible, so that’s a form of rotation. But usually these fights, these court cases that I’m referencing, have been out of county commissions, school boards, city councils. So the Indiana Legislature fight was about whether they were too sectarian or not. Not about whether they had a rotating model. I would think that most legislatures have somebody responsible for giving the prayers most of the time and maybe, invite in guest religious leaders from time to time.

My last question for you is, do you think there is any chance that what the Hawaii Senate has done here, and the House by the way is considering the same legal advice from the Attorney General here as the Senate, that this might serve as a trend or precedent for other legislatures across the country to adopt? In other words, no mandatory invocation but the occasional rotational, if you will, invocation — nonsectarian, or rather, sectarian but rotating?

I doubt it. You know, I just think that in most places in the country, political leaders are going to be very reluctant to change the practice that they have unless somehow they are forced to. And I think the only reason they would be pushed to by a lawsuit that would be successful, would be if they erred on the side of being too sectarian. So I don’t think they’re going to abandon their practice unless that’s the issue. And that’s rarely now the issue.

Because I think most, at least at the state level, most understand the general rules of the game in Marsh and that the safest approach is to be sure the legislature doesn’t come across as promoting one particular religion over other religions. So they could change the law, but why would they as long as this is working and is generally seen as being constitutional?

Any final points?

Well, I guess part of the frustration here, I think for people on all sides of this, is that this is very difficult to get right because it starts with a wrongheaded approach to religion in public life. Any time we have government-sponsored religion, I don’t think there’s any way to get that right. I think it’s always going to be seen by many people as a violation of conscience, as imposing religion on the public through government which James Madison, Thomas Jefferson believed was a violation of conscience. I think it’s worth noting here that although James Madison was in that Congress that hired the chaplain, later in his life he wrote about this issue and said that was a big mistake and that they should not have done that — that it’s no business of government to give official prayers of any kind and that people should be free to practice their religion as citizens.

But the government should not be involved in promoting religion. And I think once the government is involved, and the Supreme Court in this case has carved out an exception and allowed government prayers, we’re always going to be fighting because it satisfies no one really. I mean, people of faith, deep conviction, are not happy with generic, to whom it may concern, prayers. Because for most religious people, those kinds of generic prayers are not real prayers. So it doesn’t satisfy authentic religious faith for the government to be in a position of giving prayer as long as it’s not real prayer.

On the other side, people that don’t think their government should be involved in the religion business, they’re not happy no matter how generic you make the prayer. You know, just because it’s all watered down, and the least common denominator to whom it may concern, doesn’t cure the problem for them that the government is in the business of promoting religion. So really this solution that the court carved out in Marsh, I don’t think satisfies anybody. So therefore, we’re always going to be fighting, with one side wanting it to be a little bit more prayer and the other side, wanting it to be a little less prayer. So there’s no real good answer to that except meaningless prayers that, as I say, leave everybody feeling unsatisfied.