Make that a moment of silence, please.

Photographer: Andrew Harrer

James Madison Would've Backed Phoenix's Satanists

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Phoenix City Council has voted to no longer to begin its meetings with a public prayer. Sounds like a victory for the separation of church and state, right? Maybe even the influence of Justice Elena Kagan’s dissent in the Town of Greece case, in which the court’s majority allowed such prayers to continue?

Think again. The Phoenix City Council is banning prayer so that self-described Satanists won’t have a chance to give one. The decision isn’t about tolerance but intolerance. In the end, that’s a good thing, a sign of the establishment clause working -- and of James Madison’s First Amendment logic in action.

The law as clarified by the U.S. Supreme Court in the 2014 case is the backdrop against which events have unfolded. According to the justices’ interpretation of the First Amendment, the city council can hold public prayer at the beginning of its sessions. Congress does it, after all -- and has from the very beginning.

Justice Anthony Kennedy, who wrote the majority opinion in the Town of Greece case, reasoned that, unlike a prayer in a public school, the adults appearing before the city council aren’t being coerced to participate in prayer.

Kennedy noted that the town  at issue -- Greece, New York -- hadn’t intentionally favored Christianity over other religions in a discriminatory fashion. Although the prayers had been offered by Christian ministers, this reflected the town’s demographics. No one had been denied the right to offer a prayer on the ground that the town disapproved of the content of his or her religion.

The legal upshot is that a city council would be violating the Constitution’s establishment clause if it picked and chose among potential public prayers, favoring the beliefs it liked and prohibiting those it did not. Another way of putting this legal requirement is to say that, at a minimum, the First Amendment requires the government to be neutral among different religions when it arranges public prayer.

The doctrine therefore created the quandary facing the Phoenix City Council: What to do when members of the Satanic Temple demanded a turn delivering the prayer?

I was disappointed to learn that the Satanic Temple apparently doesn’t cater to actual Satan worshipers. A member told the Arizona Republic that the organization “does not believe Satan actually exists and instead views the biblical Satan as a metaphor for rebellion.” It’s a group of agnostics who don’t care for public prayer.

But for constitutional purposes, that doesn’t matter. Refusing the group’s intentionally provocative request would render the city council’s prayer practices unconstitutional.

The city council tried to get around the Constitution by suggesting that each member, on a rotating basis, get to invite people to pray. But the hero of the story, City Attorney Brad Holm, told the council correctly that this would still violate the Constitution, because it would be designed to favor certain religious perspectives over others.

So the council defaulted to a moment of silence. That might not satisfy strict secularists, but it certainly shows greater respect for the separation of religion and government. And the happy ending has strong support in James Madison’s ideas about religious liberty. We often forget it, but in fact Madison was against the Bill of Rights before he was for it.

The original Constitution was drafted and ratified without the Bill of Rights. Madison, justly considered the father of the Constitution, thought a Bill of Rights would be largely useless. He disparaged state bills of rights as “parchment barriers” because they couldn’t in practice do anything to stop the majority from violating the rights of the minority.

Madison’s case in point was Virginia’s attempt to levy a tax in support of religion in 1784, before the federal Constitution was adopted. Virginia’s Bill of Rights protected religious liberty. Yet a coalition led by Patrick Henry almost succeeded in passing legislation that would’ve required Virginians to pay taxes in support of their religious denominations.

Madison led the fight against Henry’s bill. He won -- and concluded that written guarantees of religious liberty weren’t useful.

Madison’s side prevailed because Virginia had lots of religious diversity. The Anglican majority supported the law, but Baptists opposed it, as did many Presbyterians. To Madison, the true lesson of the fight was that as a structural matter, having lots of minorities could thwart the tyranny of the majority. This was an important precursor for Madison’s thinking about how to design the U.S. Constitution.

The Phoenix Satanists illustrate the continuing relevance of Madison’s analysis. As interpreted by the Supreme Court, the Constitution doesn’t prohibit city council prayer so long as the council is neutral in determining who gives that prayer. But the reality of religious diversity means that the majority itself will choose not to have the prayer -- to avoid giving a voice to the rebellious minority. Diversity, not the parchment barrier of the First Amendment, is driving religious liberty.

  1. I would say that the law already contained this requirement before the Town of Greece case, but now it’s explicit.

  2. There was an opt-out provision in the law for those who wanted their taxes instead to go to “seminaries of learning.”

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net