[Editor’s Note: This post is in response to “Law’s Prayer: Town of Greece v Galloway” by Winnifred Fallers Sullivan.]
With her citation of Latour’s faxed pizza, Winnifred Fallers Sullivan argues that law in Town of Greece v. Galloway traces, delimits, and “tames” prayer such that the facsimile produced is a mere reproduction framed by the technology—in this case, the legal concepts—translating it. The work of the law, Sullivan suggests, is to transform religion, “to obscure the actual practices in the case, reducing them to types in service of law’s own logics.” As a result, she notes, “law does not need courts” because the power of law extends beyond courts and provides rules structuring daily practice. In its work of transformation and concealment, however, the unfolding of the law through its institutional manifestations—hearings, court briefs, amici curiae, transcripts—reveals to us not only, as Sullivan suggests, “the juridification of life in its very subjectivity,” but also how such manifestations authorize particular beliefs and practices as acceptable civil norms. As a result of this attempt of inclusion and authorization, an always inescapable moment of exclusion occurs and it is this moment of exclusion, I argue, that helps us explore Benjamin Schonthal’s observation of a moment of religious practice or belief that remains untamed despite the classificatory and performative aspects of legalizing discourse at work upon it.
On the matter of inclusion and exclusion, consider the sense of humor of the U.S. Supreme Court. On several occasions during the oral arguments of Greece, which occurred on the day following Sullivan’s post, the Justices, along with Thomas G. Hungar, who was representing the petitioner (Greece), and Douglas Laycock, who represented the respondents (Susan Galloway and Linda Stephens), shared moments of laughter. Also joining the discussion was Ian H. Gershengorn, Deputy Solicitor General of the U.S. Department of Justice as amicus curiae. Sadly for Mr. Gershengorn, it seems, he was never in on the joke. Most of the mirth was reserved for Hungar and Laycock.
Laughter has enjoyed a brief documented history in the high court. As Jay Wexler observes in his lighthearted but ingenious essay “Laugh Track” and its follow-up, prior to the 2004-2005 Supreme Court term no laughter was recorded within official transcripts. Since its inclusion, however, Wexler finds that Justice Scalia has had the highest number of “laughing episodes,” 77 (with the next closest being Justice Breyer with 45), and the highest “Laughter Episodes Instigated per Argument Average (LEIPAA)” at 1.027—a statistic which must be read with a chuckle. Wexler acknowledged the light-hearted nature of his analysis, but for others such laughter is instructive. Developing upon Wexler’s admittedly basic insights, Ryan Malphurs argues that the laughter and humor shared among the Justices and legal counsel reflected an attempt to create a more egalitarian and normalized space meant to obviate the institutional impediments emplaced by the rituals of courtroom jurisprudence. Laughter, Malphurs concludes, is both the resistance of alienating intellectualization and the creation of new social bonds among the Justices, legal counsel, and gallery members.
If such is the case, then any occurrences of laughter in the oral arguments of Greece v. Galloway should point toward some sort of inclusionary moment. Yet, they do not. The first instance of laughter occurred in an exchange between Hungar and Justice Antonin Scalia on the question of non-religious (or perhaps irreligious) prayer:
Justice Scalia: Mr. Hungar, what—what is the equivalent of prayer for somebody who is not religious—
Mr. Hungar: In the Rubin—
Justice Scalia: —what is the equivalent of prayer?
Mr. Hungar: It would be some invocation of guidance and wisdom from—
Justice Scalia: From what?
Mr. Hungar: I don’t know. In—the Rubin case—
Like the first instance, the second instance arrived amidst a discussion on universalized prayers, this time held among Laycock, Justice Alito, and Chief Justice Roberts—with Justice Scalia delivering the punch line:
Mr. Laycock: We’re saying you cannot have sectarian prayer. The town should instruct—should have a policy in the first place, which it doesn’t, instruct the chaplains keep your prayer nonsectarian, do not address points of—
Justice Alito: All right. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer. Wiccans, Baha’i.
Chief Justice Roberts: And atheists.
Justice Scalia: And atheists. Throw in atheists, too.
Laughter may signal a diversity of human emotions, but here I believe it reflects a shared moment of insight considered humorous through what seems the incongruous assertion that prayer, as an affirmative statement to a higher power or powers, eludes the spiritual capacities of atheistic or agnostic persons. The incongruency between the concept of prayer shared among the Justices and those in attendance is the foundation of their moment of levity. In his Critique of Judgment, Kant argues that all which excites hilarity must in some way relate to the absurd. Here, the absurdity alluded to by Scalia and Roberts is the idea of an atheist either praying on behalf of, or accepting prayers from, those considered, at a minimum, somewhat theistic. John Morreall classifies the Kantian humor-by-absurdity idea as part of his incongruity theory of humor, within which he also includes the arguments of Henri Bergson. Bergson argues elsewhere that “for any ceremony… to become comic, it is enough that our attention be fixed on the ceremonial element in it, and that we neglect its matter … and think only of its form.” Here Sullivan’s and Schonthal’s positions are confirmed: the operation of law has stripped prayer down to the core principle of belief and has classified prayer on the basis of commonly held characteristics recognizable across particular traditions—atheism excluded.
There is, to be fair, a nod toward the possibility of inclusion. Alito raises the idea of a prayer that would be acceptable to a group including Christians, Jews, and Muslims. In the 1983 decision Marsh v. Chambers, Chief Justice Burger, writing for the majority, argued that the practice of legislative prayer, first observed in 1791, provided the necessary historical context to justify the continuation of the historical pattern of prayer before legislative bodies. The Marsh ruling also established, however, that legislative prayers may not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” In its opinion finding in favor of Galloway and Stephens, the U.S. Second Circuit Court of Appeals opened its arguments citing the necessity of addressing the principles of the Marsh decision. To Marsh, it added Allegheny County Courthouse v. ACLU, a case occurring six years after the former, which rejected the precedent of historical tradition and therefore ruled against the city’s holiday crèche display. Writing for the majority, Justice Blackmun noted that “however history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government’s allegiance to a particular sect or creed.” For the Second Circuit Court of Appeals, the prayer practice of Greece reflected an “endorsement” of a particular, if not Protestant, Christian creed evinced by the criteria of its “prayer-giver selection process, the content of prayers, and the contextual actions (and inactions) of prayer-givers and town officials.” Legislative prayer, it concluded, must occur in such a fashion that it must convey to a “reasonable objective observer” no official affiliation with a particular religion. It is to this that Alito points when he presses for such an objective prayer language.
Yet, in the Town of Greece v. Galloway conversation on neutral prayer, much attention was paid to beliefs, but little to practice. Consider the example of Islam. While Alito was courteous enough to include Muslims in his discussion, his casual inclusion of Muslims as those not objecting the legislative prayer sets aside the rich diversity of understandings of prayer within Islamic traditions. Many Muslim authors describe prayer as extending beyond a simple muttering of words of assent to a higher power. Prayer as the act of ṣalāt is maintained in relation to an acknowledged all-powerful divine being who set into motion the external metronome of the earth and heavens by which prayers are timed. There is also an interior rhythm to ṣalāt—beginning with one’s ablutions, the orienting of oneself relative to others and towards Mecca, continuing with the audition of the takbīr and shahada, the recitation of the first sūra of the Qurʾān, the fātiḥa, the repeated flow of the body through each rakaʿa or prostration, additional recitations, and concluding with the benedictions and salutations of peace to the surrounding community. Yet, as with all rhythm, there remains space for riffs and improvisation. As Fareen Parvez observed in her discussion of Islamic reformism, supplication (duʿāʾ), as an act of prayer complementary to ṣalāt, remains both a point of agreement among reformists, and also a site of contestation: a manifestation of “the complexity and ambiguities of prayer, its method and effects.”
Prayer, as either supplication or, as Abū Ḥāmid al-Ghazālī considered it, a work of the external body and internal heart, is a site of exclusionary and inclusionary tension within the conversations of contemporary Muslim communities. This is to be expected, given the ongoing balancing of self, identity, and divinity that is the hallmark of establishing subjectivities within modernity. Yet prayer has long been a site of negotiation within Islamic traditions. Within the hadith collection of al-Bukhārī, a narration on the authority of Abū Dharr affirms that the number of daily prayers required of all Muslims was itself the product of an ongoing negotiation among Muhammad, Moses, and God—with Muhammad and Moses successfully convincing God that the original call for fifty prayers daily was perhaps too overwhelming. Further, a brief glance at the legal literatures of the Sunnī, Shīʿī, and Ṣūfī debates on questions related to appropriate prayer practice—as Marion Holmes Katz has shown—remains a topic of substantial legal diversity and an issue of ever-unfolding interpretation and translation.
Even the matter of laughter in prayer (ḍaḥaka fī-l-ṣalāt) possesses an uncertain legal status. Gathered in a collection of fatwas—non-binding legal decisions—of Ibn Taymiyya (d. 728/1328), who was himself no stranger to philosophical and juridical disagreements, is a short answer to the question of spontaneous humor in an otherwise spiritual moment. For Sunnī Mālikī, Shāfiʿī, and Ḥanbalī legists, if uproarious laughter occurred prior to reciting the first words of prayer, then the prayer remained valid. However, the opinions of the Ḥanafīs argued that one’s ablution and one’s prayers were both nullified by the laughter. Such a diversity of opinion reveals that prayer, among the more fundamental expressions of Muslim practice, resists the settled common classifications the petitioners and respondents of Greece so desperately hope to identify. Prayer as ṣalāt exceeds their various boundaries of legislative prayer and destabilizes it—Justice Alito’s attempts to include Islam notwithstanding.
The practice of prayer, and the diversities of opinion on such authorized practice within non-Christian traditions, was absent in the discussions of Greece. Thus, the Court revealed in its attempt at classification—and its self-understood humorous failures—that it possessed an unresolved negotiation with not only its belief in what legislative prayer has been and what it should be, but also with how such prayer should be. As Justice Elena Kagan observed, echoing Sullivan, the question of prayer will remain difficult for the Court because “part of what [the Court is] trying to do here is to maintain a multi-religious society …. And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.” Perhaps, then, we might observe with laughter that Justice Kagan distrusts faxed pizza as much as Latour.