Cracking a Capitol Catch-22

On Sept. 18, 1793, President George Washington donned his Masonic apron and helped lay the U.S. Capitol's cornerstone.

Today, the plaque commemorating this event is in a small space just inside a door, near a stairway, across from an elevator in a maze of busy Rotunda hallways. It's a hard place to pause for prayer, but this is always one of the Rev. Pierre Bynum's first stops when leading Capitol Hill Prayer Alert tours.

For many evangelicals, said Bynum, it's easier to talk about Washington kneeling in prayer on a battlefield, than to discuss Washington the Mason, leading rites that some consider bizarre or occult.

"Here we see the mixture of mortar that is at the foundation of our nation," said Bynum. "It's a mix of good and evil, of truth and error. ... We have to be honest about that."

It was time to pray. The pastor asked his small flock to move closer, so others could file through the door. By the elevator, a U.S. Capitol guard watched as believers bowed their heads for two or three minutes.

"Lord, you have set before us life and death and you have commanded us to chose life," said Bynum. "Yet we confess that death has become part of what we stand for as a nation. ... Lord, restore to us a godly foundation."

This kind of strong talk makes many people nervous. And it was at this point in a Nov. 3, 1996 tour that someone heard a guard say, "That's a demonstration." Minutes later, near a statue of Samuel Adams, Bynum saw a circle of officers talking. Then one guard approached and said Bynum was leading a demonstration and would have to stop or face arrest.

That was then. But the guards were silent as the Maryland pastor helped lead an April tour that included quiet public prayers inside the Capitol.

It was his first visit after a U.S. district judge's March 31 ruling that Bynum had a constitutional right to free speech, even with his eyes closed, head bowed and hands folded. Judge Paul Friedman said police improperly applied regulations defining a demonstration as "parading, picketing, speechmaking, holding vigils, sit-ins or other expressive conduct that conveys a message supporting or opposing a point of view or has the intent, effect or propensity to attract a crowd of onlookers."

This does not describe Bynum and his group, wrote the judge. Besides, "any regulation that allows a police officer the unfettered discretion to restrict behavior merely because it 'conveys a message' or because it has a 'propensity to attract a crowd of onlookers' cannot survive a due process challenge."

To understand tensions that affect prayer in the public square, it helps to read statements the U.S. Capitol Police Board filed when seeking dismissal of this case. The problem was not that Bynum and others were praying, but that they were engaging in activities that let others know they were praying.

Prayers said with open eyes were acceptable. But any "expressive conduct," argued the board, should be "prohibited not because it is prayer, but because it is conduct that expresses a particular message. ... To conduct prayers during their tour inside the Capitol building is to engage in a demonstration of the group's views about prayer."

Thus, Capitol police argued that these visible public prayers were actually divisive demonstrations in favor of believers having the right to offer visible public prayers -- which is a hot political issue. It was a Catch-22. There could be no pro-prayer prayers, or at least none visible to anti-prayer lobbyists.

Even though he won this time, Bynum expects more skirmishes. It's hard to venture inside the Capitol without overhearing lectures by opponents in the culture wars over abortion, sex outside of marriage, Darwinian philosophy and prayer in public schools. Religious freedom is messy.

"People are nervous these days, especially about any kind of conservative Christianity," said Bynum, just before his group viewed the spectacular religious art under the dome. "It's clear which way the trends are going. The bureaucrats -- it doesn't matter if they're Democrats or Republicans -- are convinced there's some kind of line of religious expression that people can't cross. It's tough to crack that mindset."