[Editor’s Note: This post is in response to “Law’s Prayer: Town of Greece v Galloway” by Winnifred Fallers Sullivan.]
In response to Winni Sullivan’s astute analysis of Town of Greece v. Galloway, I want to probe her claim that “prayers are tamed by law,” before looking in a little more detail at the content of these public prayers. On one level, the claim is straightforward enough. Scholars of law and religion use “law’s words and law’s aesthetics” to “describe and judge” the prayers. Public prayers come under the jurisdiction of legal terminology in an analysis that is highly textual. But the more fascinating and challenging claim is that, prior to this academic surveillance operation, the pray-ers/prayers themselves have already spontaneously become law. This sounds like a contemporary Foucauldian story about the internalisation of law’s discipline. But there are also echoes of an older story, told by (for example) Aristotle, Seneca, and Paul. Law is not the real thing, the thing in itself, but an eikon (image) of the good society. The good person, the god-like person, becomes living law.
I want to nudge this claim a little further and tempt it into being more precise. In what sense does Winni Sullivan use “law” when she claims that “the deep phenomenology of public prayer is legal”? Is this law as a vast archive of cases, opinions, codes and concepts? Is this nomos as the force of prohibition haunted and structured by its shadow-side, the transgression, the other law (heteron nomon) that is the law of law (see for instance Romans 7)? Or is it sociology’s nomos as the standard codes, habits, or customs of social and political life? Is law here vague generalised diffused normativity, rules for life? The expansiveness of Sullivan’s claim suggests a radical rethinking of law along the lines of Peter Sloterdijk’s “nomotop,” David Delaney’s “nomosphere,” or Andreas Philippopoulos-Mihalopoulos’s “lawscapes’ or ‘atmospheres of law“: law as the “mystery of stability” or expansive institutional affect. Philippopoulos-Mihalopoulos describes how in ways that are
less metaphorical than it might sound… the law is spread on pavements, covers the walls of buildings, opens and closes windows, lets you dress in a certain way (and not others), eat in a certain way, smell, touch or listen to certain things, touch other people in a certain way (and not others), sleep in a certain space, move in a certain way, stay still in a certain way.
The “hysteric ubiquity of the law” results in law’s imperceptibility, a smooth anomic atmosphere of freedom. The city is so thick with law that the law is not perceived, just like air.
How do the pray-ers internalise law, pray according to the law? What is the collusion between law and prayer in the theatre of the courts and universities on one hand and in town council meetings in Greece, New York on the other? Are the types and intensities of collusion different in these differently public spaces? In the game of law, prayer, like other religious epiphenomena (which do not exist for all, but must be conceded to exist for some), is managed by reduction to a few core terms: “sectarian,” “coercion,” “endorsement,” “religious liberty” (as opposed to words like “priestly” “prophetic”, “material” “embodied”). Each is capable of accommodating controlled debate. What is sectarian? What counts as signs and proofs of “liberty”? The terms themselves allow for a controlled performance of freedom, of interpretation. The reduction to core terms allows for plural but not infinite arrangements of the pieces, leading to different checkmate scenarios within the rules of the game. The desire for managed freedom, for limited plurality, seems particularly intense around religion and freedom of religion. Here law is particularly intent on controlling the number of pieces on the board and the potential outcomes in play.
The curious phenomenon of praying according to the law relates to some recent work I’ve been doing on the legal regulation of “belief.” In a recent twist in the vexed negotiations between the religious and the secular, “belief” (but not just religious belief) has been named as a “protected characteristic“; that is, a quality which can discriminated against, like ethnicity, sexuality, or age. The burden of proof is on secular beliefs, which have to prove that they are as “deep” as religious belief. The legal criteria for ‘belief’ are Kantian and also Kafkaesque. Belief is distinguished from other (non-qualifying) forms of mental commitment such as knowledge and opinion on the grounds that a) belief has no tangible relation to truth, and b) it has unique depth. For example, in the case of Grainger Plc & Others v Nicholson [2009/2010], the plaintiff, Tim Nicholson, and his legal team presented his environmental commitments in ways that satisfied the somewhat hilarious legal criteria for belief. But in this case belief only lasted as long as the tribunal. As soon as he exited the courts, desperate to shed the embarrassing aura of non-truth and non-science, Nicholson denied the “belief” that he had so ardently claimed.
Is Sullivan suggesting something similar about prayer? Is the suggestion that in this town hall citizens pray as if they were in court—or maybe some antechamber to the courts that may become a court at any moment—but that when they exit the space of public scrutiny and go into a “private” space with a different relation to legal jurisdiction, they may well do prayer very differently or even not pray at all? In a certain sense prayer, like belief, is produced by law and the force of law. Law makes prayer and belief “real” in public space. It allows for and creates the reality of these phenomena that modernity, by definition, considers non-real—and does so under certain controlled conditions. There is an implicit contract here. Prayer and belief are permitted to become real (or quasi-real, at least real for some) provided that they submit to the management of the forms of their production by law. As a desire for self-preservation leads us all to merge into the lawscape as a “diffused form of normativity,” so the desire for prayer to become publicly, legally tangible, results in a contractual acquiescence to the power of the law to limit, define, and manage prayers.
The force of law that is performed in these public prayers is at one remove from the sometimes bizarre contortions of rhetoric imposed on “prayer” and “belief” in the theatre of the courts. Rather than discussing prayer according to the letter of the law, the citizens internalize the spirit of the law and become living law. The force of law that is performed seems to operate mainly as a force of prohibition. The prayers nod and genuflect to popular constitutionalism and paternalism, but it is in the avoidance of forbidden words and gestures that law most makes its presence felt. The law in operation seems to be a tablet of negative commandments: not to be divisive, not to be “sectarian”—and also, I could add, not to be too religious and to provocatively perform religion as heteronomy, an other law. “Oblique forms of address,” as Sullivan puts it, avoid direct communication from and to God—except in the form of the most innocuous platitudes and generalised exhortations. At most, the ‘heavenly father’ becomes a vague spectre of paternal exhortation: a fused god-state.
These prayers are like law because they are like “faxed pizza.” Law as force of prohibition outlaws materiality even more concertedly than it outlaws the sectarian. Or to put it another way, perhaps we see materiality and corporeality as the natural home of the sectarian, which is why these public prayers can only be text. There is and can be no clapping, genuflection, bowing, swaying, davening, dancing; no prayer beads, rosary, or prayer mats. “Ice-olation” and inter-human “frigidity” can be refuted in words (as they are in the text of the prayer at the end of Sullivan’s post) but there can be no holding hands, no spooky summoning of heteronomy through clapping as a “percussive break that opens the space of communication between the sacred and the everyday” (to quote Anderson Blanton). The law lets you dress in a certain way (and not others), eat in a certain way, smell, touch, or listen to certain things, touch other people in a certain way (and not others), sleep in a certain space, move in a certain way, stay still, pray in a certain (still and static) way.
The deep collusion between law and prayer that we sense in these public prayers has much to do with the shared emphasis on text and ritual text. The two examples Sullivan gives of the prayers placed before the district court are scriptural. More precisely, they are a vague and imprecise imitation of the public image of the Bible that avoids the mess and materiality of the biblical archive. There is nothing but the tranquil invocation of bland continuity, continuum, community, kept intact by tactful non-saying. In a revealing modern variation on the tradition of apophasis, there is no trace of biblical words that shatter, smash, divide, and make reality anew; no “biblical blaspheming”; no “praying angry“; no mention of the conflict between prophet, priest, and Torah/law, or the Pauline inflammation of the old tension between written law and living law; and no vulgar materiality, no talk of prayers as ‘cows of the lips.”
The sense of deep connection between prayer and law can only appear in prayers that are vaguely Protestant-Christian-biblical, as these are. Deep and abiding cultural mythologies assume a special relationship between Protestant Christian and secular democracy at the foundation of modern Western states. This means that the Protestant-Christian tradition and modern secular law can assume the same priority over time and space. Indigenous land rights are a profound problem for a modern legal system that cannot go underneath its own foundation and undo the parcelling out of land and property that began at the beginning of, as Berger phrases it, the “community constituted by law.” How to imagine property before the legal systems that gave us the very concept of property? Similarly, Protestant Christianity is widely imagined to have patented individual belief, imagined as a sort of personal property right. We are the community constituted by the Protestant Christianity that was there at the beginning. It is commonly claimed that modern constitutions owe a particular debt to Protestant Christianity which, of all the religions, was (thanks be to god, and luckily for us) uniquely desiring of the secular and uniquely able to die to itself and accommodate other beliefs. Protestant Christianity is assumed to have a unique relation to the universal, defined in contrast to the failed catholicity of the Catholic and the always parochial-particular Jew. It is also fundamental to our modern origin stories that Protestant Christianity was there first, sponsoring the idea of plurality and host. This Christian priority is not a question of numbers, majorities, or census results. It is immune to the question of how many people identify as Christian in the U.S., or how many Wiccans, Jews, Buddhists, Muslims, or atheists currently reside in the small town of Greece. It would not be threatened if there was only one last Christian left standing. For this is not a question of space or numbers, but time. Representatives of other religions might choose—and some do—to claim that aspects of their own traditions are also profoundly compatible with secular democracy and that the traditions have yearned with equal longing for secular democracy. But this only makes these religions copycat, derivative. The founding myth has already been written; the blessing of universality and hospitality has already been given out. Paradoxically, the notion of plurality and belief as property right has already been given out to Protestant Christianity. And such a blessing is subject to the laws of property. It can only be given out once, not twice.
What strikes me about the two prayers cited in Sullivan’s post is the way they shine with absolute (banal) confidence in this mutual alliance between Protestant Christianity and the hospitality and freedom of secular law. In the first, the specificity of the “Heavenly Father” and Numbers 6: 24-26 segue naturally into the universal and the infinitely hospitable. Protestant Christianity and its God occupy the position of the first. From the privileged point of the first they offer (and who can demur?) blessing to all. As Jon Sheehan and Tomoko Masuzawa (among others) have brilliantly argued, the Bible is not seen as the cult object of Protestantism, but a cultural artefact and fundamental ally of democracy and universal civilisation. The Bible is uniquely dissolved and universalised—and severed from the limited function of prayer and prophecy as communication to and from the gods. Quoting the Bible is not a specifically, potentially aberrantly pious act as it would be were one to quote the Qur’an. The Bible is so institutionalised in the curriculum of culture that to cite Bible is not to address God, specifically, but to address a community, a public, the all. The Bible is the only religious text to have made it onto the side of the community, the all, away from the sectarian and partisan.
The second prayer, the “psalm of icy awareness,” also proclaims the ubiquity of Bible as if there has always been something universal about a “psalm.” Though it sounds as if it has been penned by one of the citizens of Greece, New York (certainly it fits the climate,) it is a set text, a communal text—and this is important. Published by Edward Hays as one of his Prayers for a Planetary Pilgrim, the psalm has been publicly prayed and posted on internet sites including the National Catholic Reporter (2010) and the blog, Texas Tom’s Ramblings and Ruminations. It seems important for a public prayer to be held in a web of community and citation. This is not a spontaneous outpouring of individual pietism. This is controlled idiosyncrasy, managed freedom. As befits the religion of community, the town hall pray-er up in Greece joins metaphorical hands with Texas Tom, much further south, and the whole Catholic community across the U.S.
Ed Hays’ book is the perfect choice for a pray-er with one eye on the first amendment. A section called “Cosmopolitan Prayers” brags an inventory of plurality: “Buddhist Tradition,””‘Native American,” “Islamic,” “Hindu,” “Judaic,” and “Toaist.” The vision is not just global-cosmopolitan but cosmic. Hays places us on a tiny earthen vessel, amidst billions of stars, planets, comets, and even “other creations.” The vision is virtually Paracelsan. But even if the universal is stretched to the furthest reaches of the universe, the Christian remains unthreatened. For centuries, the universal has been the space in which the Christian has been comfortably at home. The essence of Christianity has always had a privileged relation to natural religion. Christianity is widely believed to be, in the words of seventeenth century deist Thomas Chubb, “the same in all ages, in all countries“—and Chubb goes further, calling it the same for other planets. Hays proclaims a “sacred Essence” at the heart of “interstellar connection,” the loosely Christian Heavenly Father at the controls, with the same confidence that some of the early deists imagined that the law of the natural-Christian could be assumed to govern life on Mars, should we discover life on Mars.
Scholars of biblical psalms, well-accustomed to plagiarism and textual variation, will note how the Greece psalmist (as we might call him) makes certain emendations to the original script:
And tribeless, O God, how can I tread the path
that you have designed as companion course?
Ah, the wisdom, so divine,
in your Genesis words,
spoken to perfectly made, fully automated Adam,
“It is not good for one to be alone.”
is condensed to:
How can I tread the path which you perfectly made, fully alive Adam.
It is not good for one to be alone.
Perhaps our psalmist didn’t like the connotations of an Adam-machine, or maybe he fluffed a recitation from memory or was running out of time. Whatever the reason, the conflation of God the father with the father of all humanity is revealing. God fuses into the generic human as God-incarnate in a very specific sense: God dissolved into the human with hardly any trace of heteronomy or transcendence. God and specificity dissolve into the generic human-universal. We are all children of Adam, sons of the same God. But. And yet. The Greece psalmist cannot resist topping and tailing his psalm with a little prologue, exhorting his fellow citizens to hear “this very important part of your Judeo-Christian heritage” and a (needling?) epilogue fusing God’s community with the specifically Christian terminology of the “kingdom.” Here we glimpse the shadow-side, the other law (heteron nomon) or transgression that is the law of law (compare Romans 7). Religion rears its head, momentarily, as threat, challenge, hetero-nomon, the kind of voice of God that challenges you to create a hierarchy of religions or even to actively proselytize (an act which is potentially at war with the freedom of religion, and with non-religion, as it became in the other Greece—see for instance Kokkinakis v. Greece ). Even as the pray-er in Greece, New York prays according to the law, he seems to gently provoke the system of governance that dictates how he will pray. The otherwise law-abiding citizen tempts to sectarian sin. But precisely because the specificity invoked is Christian—or as he puts it, “Judeo-Christian”—sectarianism cannot become visible as such. In the special case of Protestant Christianity, sin is always forgiven, hidden.
In its conformity and its moment of transgression, the prayer expresses what Philippopoulos-Mihalopoulos diagnoses as the “anathema and desire of law and state.” The pray-er resents the guardian authority, even as he trusts it to best negotiate between the individual interests of its subjects. Law as a diffused and invisible sense of normativity that delegates power to a guardian authority becomes momentarily visible in prayers that so explicitly bless the functions of the “God-community” and address the guardian authority as “Heavenly Father.” But this is only a stark and visible example of a lawscape that, according to Philippopoulos-Mihalopoulos, “takes few risks and delegates conflict resolution to what it considers to be higher levels of judgement-making.” It just becomes helpfully visible when we publicly pray.