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Chris May 5, 2014

The bright side of the Supreme Court’s holding in Town of Greece v. Galloway is that it will be easier to give the Establishment Clause the funeral and Christian burial that it deserves.

I wrote about this case before it was argued and criticized Pres. Obama and the administration for siding with the town. This was the case wherein the town of Greece, NY opened its town meetings with prayers given by local citizens and clergy. An unsurprising majority of Justices Kennedy, Roberts, Scalia, Thomas and Alito reversed the Second Circuit and held that the town did not violate the First Amendment. To be clear and fair, the issue wasn’t whether prayer before town meetings violates the First Amendment but whether the prayers should follow guidelines so as not to offend or endorse religion (even the dissenting justices–the “liberal” wing of the Court–opined that prayer itself is not violative of the First Amendment). The majority opinion essentially allows a person to lead the meeting in any prayer.

To recap, the First Amendment provides the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The first line contains the Establishment Clause and the Free Exercise Clause, which form the bases for the supposed separation of church and state. Organized prayers in public schools and before football games have been held unconstitutional because such prayers show a government preference for religion instead of non-religion and any prayer would likely be an endorsement/establishment of that prayer’s religion. So why are town meetings different?

The majority opinion, using Justice Kennedy’s typical judicial gymnastics, is based primarily on tradition: Congress and state legislatures have been opening sessions with prayers and have employed chaplains since the beginning of the nation. He based it on the Court’s decision in Marsh v. Chambers, which upheld legislative prayer and chaplains. Kennedy further reasoned that the prayer is not coercive (which school prayer is) because people are free to leave the meeting or arrive late. Additionally, it is done for ceremony and not as government business.

This decision wouldn’t be monumentally awful if it just maintained the law of Marsh. The devil is often in the details in these cases. Legislatures (including Congress) give their chaplains guidelines and offer broad prayers (ones that focus on nature, creation, strength etc. and not specific theology such as Jesus or Muhummad). The Greece decision will allow any prayer, even something clearly proseletzying in nature.

Although Justice Kagan in dissent did not argue that government-sponsored prayer was unconstitutional in all circumstances, she did hammer the majority’s coercion argument:

Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. See Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders’ Constitution 85 (P. Kurland & R. Lerner eds. 1987) (“[O]pinion[s] in matters of religion . . . shall in no wise diminish, enlarge, or affect [our] civil capacities”). The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose. Why not, then, at a town meeting?

I think that any government endorsement of religion goes against the First Amendment because for the freedom of religion to work, one must also have the freedom from religion. The ideas that people should pray and that prayer works (after all, someone or something must be listening to the prayer in order to do it) are themselves theological. The major reason that individual denominations have thrived in the United States is because the government by not establishing a religion did not discourage others. Non-religious schools of thought such as agnosticism and humanism deserve the same privilege. Countries that have official or at the very least dominant religions do not have the same plurality and diversity of religious ideas that we have here. It is with great irony that England with its official church–which the Quakers and Pilgrims so famously fled–is now a much more secular country than our own.