Split 5-4 along partisan lines, the Supreme Court ruled yesterday in Town of Greece v. Galloway that the town, in upstate New York, did not violate the Establishment Clause by opening its monthly town board meeting with prayers, even though those prayers were almost exclusively Christian. Sarah Posner summarizes the majority and minority opinions:
In the majority opinion, Justice Anthony Kennedy relied on the Court’s 1983 decision in Marsh v. Chambers, which upheld the practice of opening state legislative sessions with prayer by a government-funded chaplain. Writing that the founders “considered legislative prayer a benign acknowledgment of religion’s role in society,” Kennedy maintained that “[a]n insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.”
Georgia State University constitutional law professor Eric Segall has described Marsh as creating a “pernicious historical test” that relies on the centuries-old precedent of prayer rather than a constitutional analysis of whether legislative prayer violates the Establishment Clause. As Justice Kagan argued in her dissent, joined by Justices Breyer, Ginsburg, and Sotomayor, “Greece’s prayers cannot simply ride on the constitutional coattails of the legislative tradition Marsh described.”
But some of Kennedy’s colleagues on the right, Ian Millhiser notes, thought he didn’t go far enough:
This final portion of Kennedy’s analysis is joined by just three justices because Justice Antonin Scalia joins an opinion by Justice Clarence Thomas calling for the Court to go even further. To Scalia and Thomas, the only kind of religious coercion banned by the Constitution is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty” (emphasis in original). So unless the government threatens to jail or fine you for failing to pray, lawmakers can more or less do whatever they want. (Indeed, Thomas would go even further than that. In a section of his opinion that Scalia declines to join, Thomas writes that the “Establishment Clause is ‘best understood as a federalism provision.’” This means that Thomas believes that the separation of church and state applies to the federal government only.)
The upshot of [yesterday’s] opinion is that Kennedy and his fellow conservatives have finally begun a project they were expected to begin the day O’Connor retired. By the time this project finishes, it is unlikely that many limits will remain on overt government endorsements of religious faith.
Garrett Epps compares the circumstances of the case to those of Marsh:
Marsh is good law, and no party to Town of Greece was foolhardy enough to ask the Court to step back into the “legislative prayer” thicket. But there are crucial differences between the Nebraska chaplain’s invocations and those at the town-board meetings in Greece. To begin with, onlookers in Nebraska were in a gallery, while the chaplain addressed the members of the legislature. No citizen was called on to do business with the legislature during its session. And the chaplain, after first referring to Jesus in his early prayers, stopped the practice when a Jewish member quietly objected.
In Greece, however, citizens come to the town board not only to watch but to supplicate such favors as building permits and zoning changes. The “chaplain of the month” faces the audience, not the members, and often aggressively asks attendees to bow their heads and pray, and as noted, the prayers are rife with theological claims not only controversial to non-Christians but troubling for many of the faithful. The town board, which has a town employee solicit a different member of the clergy every month, has designated only four non-Christians to pray in 15 years of official prayer. (Those four were picked just after litigation over the prayers began, and the nod has gone to Christians for the six years since.) In Greece, moreover, once the lawsuit was brought against prayers, at least one volunteer chaplain responded by tongue-lashing the dissenters in his official prayer.
As Dahlia Lithwick sees it, the ruling completely sells out religious minorities:
I think the interesting change in the court’s posture today is that sectarian prayer in advance of legislative sessions is no longer characterized merely as “prayer.” In the hands of Justice Anthony Kennedy, who writes for five justices, these benedictions are now free and unfettered “prayer opportunities.” And “prayer opportunities” are, like “job creators” and “freedoms,” what make America great. …
“To hold that invocations must be nonsectarian,” Kennedy wrote for the five-justice plurality, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech.” In other words, not only did the court move the goal posts—from now on sectarian prayer will be permissible until it isn’t—but it also threw out the rule book and benched all the refs. From now on, says the court, it’s improper for government or judicial officers to second-guess the motives of the prayer policy or the prayer giver. To the extent the court ever played a role in ensuring that minority religious rights were not trammeled by well-meaning majorities who fervently believe that here in America we are all basically just country-club Judeo-Christians with different hairstyles, the jig is up: From now on we just do as the religious majorities say, so long as nobody is being damned or converted.
Allahpundit examines the distinction between sectarian and non-sectarian prayer:
But won’t sectarian prayer raise the risk of religious indoctrination? It’s one thing to pray nonspecifically to “God,” but if you’re praying to Jesus then you’re obviously endorsing Christianity. Kennedy’s answer to that is interesting: The reason it’s okay to have prayers before a legislative session is because those prayers aren’t really designed to spread the faith, they’re more just to “solemnize” the occasion. That reminds me of the idea of “ceremonial deism,” a term that’s been used in dissents before to mock the Court’s willingness to tolerate minor government endorsements of religion so long as no one takes the endorsement very seriously. Technically “In God We Trust” may violate the idea that the feds shouldn’t be taking sides between believers and nonbelievers, but it’s so vague and so rote that it’s basically lost all religious meaning, which makes it okay. Kennedy’s offering a twist on that.
Will Americans agree with SCOTUS on this ruling? Allison Kopicki thinks so:
Nearly three-quarters of American voters said that “prayer at public meetings is fine as long as the public officials are not favoring some beliefs over others,” in a Fairleigh Dickinson University PublicMind poll that was conducted in December. About one-quarter of voters said that prayers should not be allowed, as prayers of any kind suggest favoring one belief over another. Nearly 9 in 10 Republican voters voiced support for prayers in public meetings, compared with 6 in 10 Democrat voters and three-quarters of independent voters.
But Paul Waldman believes that support is qualified:
Somewhat ironically, those who advocate for more state sponsorship of religion almost always do so in generic terms. They don’t say we need more Jesus in public schools, they say we need more God. They say that because they believe it will be more persuasive to people of other faiths, and precisely because they know that if more “God” got into public schools or state-sponsored events, it would be their God.
But I wonder how they’d feel if it weren’t. For instance, Dearborn, Michigan has a large Muslim population. Would people be okay with every city council meeting starting with a prayer by an imam, or with cheerleaders at the high school making banners with praise for Allah? In other words, how would they feel about religion getting entwined with government if it weren’t their religion?
Eugene Volokh dissects Kagan’s argument that prayer would be permissible if the town invited clergy “of many faiths” to perform it:
So if the Town of Greece had deliberately invited more non-Christian prayer givers (which apparently it hadn’t done until complaints started coming in), then even the sectarian prayers that were actually delivered would have been acceptable even to the dissent. “When one month a clergy member refers to Jesus, and the next to Allah or Jehovah — as the majority hopefully though counterfactually suggests happened here — the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.” …
Note that the dissent does not indicate how often non-Christian prayer givers would need to lead the prayer (under the invite-clergy-of-many-faiths option), though it appears that proportional representation relative to the population might not suffice. If 95% of the religious worshippers in an area are Christian (probably pretty likely in many places, and perhaps in the Town of Greece itself), then proportional representation would mean that a non-Christian religious speaker would offer prayers only once every two years; it’s not clear whether that would suffice, given the majority’s “one month … and the next” analysis.
Serwer objects to both opinions on the grounds that prayer is prayer, sectarian or not:
The problem with the majority opinion is that the invocation beginning Greece’s town board meetings clearly favored Christianity, even if, as Kennedy suggests, there’s a long tradition of doing so and the imposition on non-believers was minimal. The problem with the dissent is that Kagan’s argument against using “sectarian prayer” to open government proceedings is really an argument against having any kind of prayer in such settings at all.
One could question whether such “nonsectarian prayer,” cleaved as it is from the specifics of religious belief, can really be called prayer, but Kagan’s reference to terms “common to diverse religious groups,” gives the game away. The very existence of prayers opening legislative sessions indicates a state preference for people of faith over people who do not adhere to any religion.
The “moment of silence” that Greece used to begin its town meetings with until 1999 would seem like the fairest compromise, and the one least offensive to the Constitution’s prohibition on government religious favoritism. With a moment of silence, every believer can pray according to their beliefs, and every non-believer can use the moment to consider the solemnity of the event.
Elizabeth Dias rounds up other reactions to the ruling:
The Becket Fund for Religious Liberty called Monday’s ruling a “great victory” for religious freedom. “Prayers like these have been taking place in our nation’s legislatures for over 200 years,” said Eric Rassbach, deputy general counsel at the Becket Fund, which filed a friend-of-the-court brief in the Town of Greece case. “They demonstrate our nation’s religious diversity, and highlight the fact that religion is a fundamental aspect of human culture.” Penny Nance, president of the Concerned Women for America, also applauded the ruling. “Everyone wins, including the staunchest atheists, when we allow the free exercise of religion or non-religion according to a person’s conscience,” she said in a statement. …
But the losing plaintiffs also have some religious leaders on their side. Rev. Dr. C. Welton Gaddy, president of the Interfaith Alliance, and Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, stood against Monday’s ruling and may be allies for the opposition as the fight continues. “If there is any positive side in this disturbing decision it is that the court makes clear that if ‘the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion…That circumstance would present a different case than the one presently before the Court,’” Gaddy said. “The distinction is a difficult one to make and one I expect will cause the courts to revisit the issue soon.”
The Dish 