In a post published last week, Josh Blackman points to an important question that can help us think about the permissibility of public prayer ― not only prayer at municipal council meetings (the post’s immediate context), which the U.S. Supreme Court recently considered in Town of Greece v. Galloway (a case I briefly discussed here) and which the Supreme Court of Canada will consider in Mouvement Laïque Québécois v. City of Saguenay, but also other instances of public prayer. The question, which prof. Blackman argues is “almost outcome determinative,” concerns “the value of prayer.” As he points out, Justice Kennedy’s majority opinion in Town of Greece repeatedly emphasizes “the value of prayer as lending ‘gravity’ to the lawmaking process.” The dissent, while not rejecting prayer outright, does not seem to attach any particular value to it, and hence, says prof. Blackman, finds it easier to rule for those who object to the Town’s implementation of the prayer. The question of the “value of prayer” is indeed an important one. All the more so since this value can be not only positive (as the majority in Town of Greece and prof. Blackman himself seem to believe) or nil (as the Town of Greece dissenters might think), but also negative, even apart from cases of explicit or implicit coercion.
I have to say that I am much more skeptical than Justice Kennedy or prof. Blackman about whether prayer really has much of a positive value in setting the tone for the deliberations of a legislature or of a town council. There seems to be little evidence, for instance, that the prayers in the U.S. Congress (or in the Canadian Parliament) succeed at “remind[ing] lawmakers to transcend petty differences in pursuit of a higher purpose” (Town of Greece, p. 6), although I suppose one can always say that their petty differences might get even worse than they already are without the benefit of legislative prayers. And while I haven’t studied the issue, of course, I rather doubt that Saguenay’s municipal council does a much better job than those of neighbouring municipalities which do not open their council meetings with prayers, or indeed that its own performance improved in any noticeable way when the Mayor Tremblay went on his prayer crusade.
For my part, I suspect that public prayer is often the product of a familiar public choice problem: officeholders using the powers of their office to advance their personal interests and pet causes, not for the benefit of the public, but rather at its expense. Of course, such roads or bridges to nowhere, monuments to former leaders of the politicians’ parties, and assorted other white elephants are presented and defended as being in the public interest. But what they really do use the resources taken from the public as a whole ― or, “better” yet, from electoral minorities not part of the politicians’ coalitions ― for the benefit of the politicians, their friends, or their supporters. Of course, legislative prayer does not necessarily involve a transfer of public funds (the chaplains who led the prayers in Town of Greece were volunteers; the mayor of Saguenay hasn’t, so far as I know, got a pay raise to compensate him for his new task of leading the municipal council’s prayers). But the principle remains the same: religious majorities of municipal councils or legislatures set up a prayer regime which advances their conception of religion and/or of the duties of a religious official, and possibly also wins them the support of some religious voters, while imposing a cost, no less real for being emotional rather than pecuniary (and even for not reaching the threshold of coercion!) on religious minorities whose political support they can afford to dispense with.
This approach to public prayer ― asking what its value is, and paying attention to public choice concerns ― also helps explain why, to me at least, the prayers at Remembrance Day ceremonies (which, as I wrote here, the Supreme Court may want to distinguish from the municipal council prayers) do not seem to raise the same concerns as legislative prayer. Remembrance Day prayers are, arguably, not for the benefit of politicians (who might have had little to do with their inclusion in the ceremonies), but of the members of the Canadian forces, the veterans, and their families. And even if some members of the public who attend the ceremony do not like the prayers, that cost, in that specific context, does not matter. We do not attend (or watch) these ceremonies for our own sake, but to pay respect to the veterans and the victims of the wars. It is their day, not ours, and our own feelings are very much secondary.
That is not true in the case of municipal council meetings, however. If politicians are public servants, as they claim to be, then what matters is their prayers’ benefits and costs to the public. Officeholders should not be able to hide between specious claims that prayers set the right tone for their partisan squabbles, otherwise known as deliberations, while in reality favouring their religious feelings, or constituents, at the expense of dissenters.