America's Founding Fathers were brilliant men, but their penchant for concision has produced a plethora of confusion in the past couple of centuries. See Antonin Scalia's duel with John Paul Stevens over the mean ing of the Second Amendment for one example. For another, see Virginia's continuing contretemps over prayer at public meetings.

On Wednesday Sandra Day O'Connor, a former colleague of Scalia and Stevens, handed down a ruling as a guest member of a 4th Circuit panel concerning prayer at meetings of the Fredericksburg city council. Hashmel Turner Jr., a member of the council and a pastor, sued the council two years ago over its policy prohibiting references to specific deities during meeting-opening prayers. He wanted to end his prayers with "in the name of Jesus Christ."

Turner had help from the Charlottesville-based Rutherford Institute, whose president, John Whitehead, argued that the council policy violated Turner's freedom of speech: "The government can't write prayers for people and they can't tell people how to pray," Whitehead says. On the other side of the question stood the ACLU, which urged the Fredericksburg council to adopt its policy against sectarianism in the first place. "Precedent is pretty clear," says Kent Willis, the executive director of the ACLU of Virginia. "Government prayer cannot show a preference for one religion over the other."

The ACLU often gets a bum rap, particularly from conservatives who accuse the organization of unreconstructed liberalism. In fact, the group is commendably consistent. But on this issue, its consistent application of principle seems to produce a rather inconsistent result. Remember the Chesterfield witch?

THREE YEARS ago, Chesterfield's Board of Supervisors became embroiled in controversy over the board's policies concerning public prayers. The board invited various religious leaders to offer invocations at its meetings. The invocations were, supposedly, non-sectarian. But when Cynthia Simpson, a local Wiccan, asked permission to offer an invocation, the board shot her down. In a letter, the board told her that invocations "are traditionally made to a divinity that is consistent with the Judeo-Christian tradition." Some of the supervisors at the time took snarky jabs at Wicca, calling the faith a "mockery" and making haw-haw jokes about Halloween and the Wizard of Oz.

Simpson sued. In that case, the 4th Circuit upheld the county policy.

The Virginia ACLU took the witch's side. Chesterfield, Willis said, wanted to "stand on its head 200 years of tradition and law protecting the rights of all religions to be treated equally." Willis said the Founders had a vision of religious equality that "foresaw a diverse religious landscape in which the government would never show a preference for some religions over others."

"Our position is a simple one," Willis said when the ACLU filed a petition on Simpson's behalf. "We cannot find any instance in American jurisprudence allowing the government to officially prefer some religions over others. Indeed, all we can find is the opposite -- repeated admonitions against the government when it discriminates on the basis of religion."

Putting the matter gently, there seems to be some tension between the stances of both the court and the ACLU in the two cases. In the Fredericksburg case, the court and the ACLU seem to be saying that governmental neutrality forbids invocations that reference Christian faith traditions. In the Chesterfield case, they seem to be saying that government neutrality requires allowing invocations that reference specific non-Christian faith traditions.

BUT THEN, the First Amendment contains two provisions that also rub against each other. One forbids governmental "establishment" of religion, and another forbids government to restrict the "free exercise thereof." Courts and society have been trying to reconcile those two mandates for two centuries and change.

There is a defensible rationale for the stance the ACLU has taken, and it goes like this: Governmental bodies should not allow invocations, period. But given the fact that Chesterfield had done so, then it was obliged to treat all religions equally by allowing prayers from other faiths: Buddhist, Shinto, Wiccan, or Spaghetti Monster. Having opened the door to Abrahamic faiths, it couldn't slam the door on non-Abrahamic ones. In the Fredericksburg case, the ACLU doesn't want the door opened at all.

It's all a gargantuan Gordian knot -- and one that probably can't be untangled to everybody's satisfaction so long as governmental agencies endorse public invocations. Since public prayers aren't likely to go away any time soon, no doubt Virginia will have another chance to revisit the question again -- and again, and again. What fun.

My thoughts do not aim for your assent -- just place them alongside your own reflections for a while.

--Robert Nozick.
Contact A. Barton Hinkle at (804) 649-6627 or bhinkle@timesdispatch.com.