WASHINGTON • The most important turn in this week’s Supreme Court ruling in Town of Greece v. Galloway — a case that probes the constitutionality of explicitly religious prayer in legislative sessions — isn’t that the courts no longer have a role in policing the Establishment Clause, or that pretty much any sectarian prayers can be offered at town meetings so long as they do not "threaten damnation, or preach conversion" to minority religions. No, 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.
The words prayer opportunities come from the court’s 1983 decision in Marsh v. Chambers, a case establishing that prayers before the Nebraska state legislative sessions were constitutional because, erm, history said so. Although the First Amendment’s Establishment Clause bars the government from establishing a religion and at least nominally means the government does not favor one religion over another, after 1983, the courts have found that legislative prayers, even sectarian ones, are generally permissible so long as the prayers were not "advancing or disparaging a particular religion." When the town of Greece, a mostly Christian town of fewer than 100,000 people outside Rochester, began offering chaplain-led prayers before town council meetings in 1999, town officials compiled a list of possible "chaplains of the month," all of whom were Christians. So for many years, at every monthly session, a Christian prayer was offered, with as many as two-thirds of them explicitly invoking Jesus Christ. (This changed in 2007, when complaints were lodged and a handful of other religious chaplains were invited, including Wiccans.)
Two women sued, one an atheist and the other a Jew, both contending that the First Amendment’s Establishment Clause is violated when, as here, the state sanctions a system in which Christian prayers are offered almost exclusively for nearly a decade, particularly when this occurs at sessions in which citizens in attendance must participate in order to interact with their elected representatives. The 2nd U.S. Circuit Court of Appeals agreed. This week, on the usual 5-4 lines, the Supreme Court reversed the appeals court, finding that even the overtly sectarian prayers offered in Greece do not violate the Constitution, and, more importantly, that outside of future prayers that "threaten damnation, or preach conversion," neither state legislatures nor the judicial branch should play any role in second-guessing the religious leaders conducting prayer sessions.
"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.
There will be a good deal of bitterness in the coming days among members of religious minorities and majorities who believe that the Town of Greece decision is just or unjust depending largely on how they feel about sectarian Christian prayers. But stepping back from the specific arguments of the plurality and dissent, it’s fascinating to see how Kennedy and Justice Samuel Alito relentlessly characterize religion as an essentially peaceful, civilizing, lofty influence that seems to have more to do with social politeness than religious zeal. Kennedy’s majority opinion contains the complete text of four prayers, presumably to calm and unify his stressed-out reader, and he writes lovingly of prayer that is "solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing." He seems unaware that for every solemn and respectful prayer, America offers up dozens of fiery, judgmental, even violent ones.
Alito goes even further in his concurrence, blithely assuming that no tolerant, open-minded person could really object to what happens before Greece council meetings. He concludes that "although the principal dissent attaches importance to the fact that guest chaplains in the town of Greece often began with the words ‘Let us pray,’ that is also commonplace and for many clergy, I suspect, almost reflexive."
In short, what is commonplace to Alito must by definition be so for everyone. Alito is also at pains to explain that the decade of Christian prayer in Greece was not intentional. At worst, it simply was the result of a clerical error in compiling a list of all-Christian chaplains. Again, the assumption seems to be that since — left to their own devices — polite majority religions will almost always inadvertently privilege themselves, there can be no real constitutional harm here. He does not see that this is precisely the danger.
Alito and Kennedy seem convinced that religion not only civilizes and unifies us all (see Alito’s amazing discussion of the great religious unification of 1774), but that anyone not similarly elevated and inspired is just kind of lame. Perhaps because their version of religion is so sweetly polite, they’ve reimagined the refusal of dissenters to either pray along or remove themselves from the room — but in any event to stop kvetching — as civic rudeness.
Scalia and Justice Clarence Thomas file a separate concurrence to make certain that even as Kennedy has eviscerated his own "coercion" test for Establishment Clause violations, they do not believe that anyone can ever be coerced by state endorsement of religion, unless there has been brutal and repressive coercion:
"to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts - not the "subtle coercive pressures" allegedly felt by respondents in this case."
Thomas adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church — leaving open the question for another day.
This brings us to Justice Elena Kagan, sounding almost, forgive me, biblical in her condemnation of the majority’s "blindness" to the impact of a decade’s worth of majority religion in Greece: "No one can fairly read the prayers from Greece’s town meetings as anything other than explicitly Christian — constantly and exclusively so," Kagan writes. "The prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths."
Kagan seems to understand that religion can divide, roil and humiliate as often as it can unify us, and that it’s not to be left to majorities to assert what the polite or proper levels of compulsory sectarian preaching might be. She writes:
"The monthly chaplains appear almost always to assume that everyone in the room is Christian. . The Town itself has never urged its chaplains to reach out to members of other faiths, or even to recall that they might be present. And accordingly, few chaplains have made any effort to be inclusive; none has thought even to assure attending members of the public that they need not participate in the prayer session. Indeed, as the majority forthrightly recognizes, when the plaintiffs here began to voice concern over prayers that excluded some Town residents, one pastor pointedly thanked the Board ‘on behalf of all God-fearing people’ for holding fast, and another declared the objectors ‘in the minority and . ignorant of the history of our country’."
In other words, it makes no sense to defer to majorities in legislatures and trust their claims that "all God-fearing people" love to pray to Jesus before secular legislative sessions. That deference is too steeped in assumptions about what is ordinary, necessary, and, yes, polite.
So freedom in America now means more and more sectarian "prayer opportunities" will be hand-delivered to us as we go about our daily lives. And you can be certain that here in the Land of Opportunity, more and more such "opportunities" to respect and honor and even worship along with the majority religions will be offered to us. And more and more, "freedom" will come to mean that unless you are being condemned to hell or threatened with conversion, you are free to sit quietly and give thanks that you still live in a free country. Amen.
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