There are a lot of problems in the Supreme Court’s Town of Greece v. Galloway decision, not the least of which is the actual result—an expansion of nonsectarian prayer into public lawmaking spaces that puts us in uncharted waters.
The last time the Supreme Court looked at the issue of government-sponsored prayer was in 1983 in Marsh v. Chambers, a case that upheld an opening prayer tradition at the Nebraska state legislature based on the tradition of legislative opening prayers that Congress had followed since this nation’s founding. Many legal scholars criticized the Marsh decision as one that favored historical practice over legal principles, but for Justice Anthony Kennedy writing for the 5-4 majority in Town of Greece v. Galloway, historical practice and legal principle are more or less the same thing. And that’s troubling.
Prior to 1999, the town of Greece, New York, opened its legislative session with a moment of silence. In 1999, at the request of the town’s supervisor, the town began opening its sessions with a prayer. Nearly all of those prayers were delivered by Christian clergy members and there was no requirement that the prayers be inclusive or non-denominational. City officials selected speakers off a list of local religious leaders provided by the Greece Chamber of Commerce. That list included only Christian religious officials, even though other denominations exist in the community. From 1999 through 2007, Christians delivered
almost every single invocation prayer and, according to Americans United for the Separation of Church and State, the organization that brought the lawsuit challenging the town’s practices, between 1999 and June 2010 about two-thirds of the 120 recorded invocations contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.” Those practices, the conservative majority held, are completely constitutional because it doesn’t matter so much if it appears that the government is endorsing a particular belief, so long as citizens don’t feel compelled or coerced into participating.
“As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society,” Justice Kennedy wrote for the majority. “The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.” In other words, the tradition of lawmakers praying is the default from which questions of what practices violate
the Establishment Clause should be judged, which is another way of saying: This is a Christian nation as a matter of law. So much for religious pluralism.
Nobody in the conservative majority seems particularly clear on what unconstitutional coercion would look like in the case of legislative prayer, and if eight years of almost exclusively Christian prayer and prayer-givers opening the town’s meetings doesn’t cross the line, it’s hard to imagine what would. Justices Kennedy, Samuel Alito, and John Roberts said that test is satisfied if a town’s governing body ordered the public to join in the prayer, if the prayer or governing body criticized “dissidents” who did not share the prayer’s beliefs, or if there was a showing that official action would be or was influenced by whether someone did or did not take part in the prayer exercise.Kennedy wrote:
If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.
Justices Antonin Scalia and Clarence Thomas argued for an even stricter test, arguing that “coercion” would require the government to actually compel people to follow a faith, like mandating that taxes be paid to religious institutions, or compelling attendance at religious services.
Not surprisingly, Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer dissented, noting that the majority landed a heavy blow to religious pluralism and ignored the realities of an ever-diversifying nation. “When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another,” Justice Kagan wrote in her dissent. “And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”
But dividing along religious lines is exactly what an opinion that grounds itself in a historical practice that heavily favors Christian prayer does, a point made by Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, which sponsored the lawsuit challenging the town’s practice. “This ruling is out of step with the realities of modern-day America,” Lynn said. “In a country where pluralism and diversity are expanding every day, a Supreme Court decision that gives the green light to ‘majority-rules’ prayer at local government is exactly what we don’t need.”
As the decision in Galloway suggests, there’s a lot of transcendence happening among the conservative wing of the Roberts Court, but it’s not the kind that leads to enlightenment. In the affirmative action and voting rights decisions, the
Court transcended systemic racial bias and ruled the United States “post-racial,” gutting two of the most effective tools from the civil rights movement of the 1960s to combat that bias. In the campaign finance decisions, it transcended corruption and influence-peddling and ruled U.S. elections to be filled with as much free speech as money can buy. And now, in Galloway, the Court has transcended partisan political rancor and ruled the Constitution an article of religious faith. Of course, this isn’t transcendence at all. It’s feigned objectivity—the kind made famous by Chief Justice Robert’s statement during his confirmation hearings that his role as a judge is an umpire, just there to call balls and strikes. And it’s a feigned objectivity that will come to define the response by the conservative wing of the Roberts Court to an ever-diversifying country.
Alabama Supreme Court Justice Roy Moore recently invoked historical Christianity as a legal basis for criminally prosecuting women who have had an abortion. He also claims that as a Christian nation, the First Amendment naturally defaults to a Christian perspective, meaning that the First Amendment only protects Christians, for example. Moore is often dismissed as part of the religious fringe, and not representative of mainstream conservative legal thinking. After Monday’s decision is Town of Greece v. Galloway, there’s a question of whether that’s still the case.