(RNS) On Monday (May 5), the U.S. Supreme Court ruled that a city, town, or county could open its regular meetings with a sectarian (that is, Christian) prayer without violating the First Amendment’s Establishment Clause. Not unexpectedly, the much-anticipated Town of Greece v. Galloway decision split the court 5-4. It is, for that and other reasons, a less than satisfying decision.

Demonstrators hold signs reading "Keep your theocracy off my democracy" in front of the Supreme Court on Wednesday (Nov. 6) during oral arguments of Greece v. Galloway. RNS photo by Katherine Burgess

Demonstrators hold signs reading “Keep your theocracy off my democracy” in front of the Supreme Court on Nov. 6, 2013 during oral arguments of Greece v. Galloway. RNS photo by Katherine Burgess


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The essence of the opinion is that if ministers are asked to give an invocation to establish a serious and contemplative tone at official functions (whether a congressional session or town board meeting), it does not matter if prayers are consistently Christian (or Jewish or Muslim). So long as the government does not control the prayers’ content, is nondiscriminatory in choosing who may pray (even atheists would have an equal opportunity to open meetings), and does not mandate that people attend or participate in prayers or penalize those who do not, the prayers may continue.

In essence, government has no business telling anyone — even government chaplains — how or what to pray. As in prior cases, the core of the decision rests on history: U.S. legislatures have always had chaplains, and often Christian prayers (although James Madison, who pushed the Bill of Rights through Congress, thought legislative chaplains — and the resulting governmental prayer — were unconstitutional).

As far as it goes, this seems rational. The court is very concerned that, as a policy and historic matter, government cannot get into the business of deciding which prayers are sufficiently generic or sufficiently sectarian.

The court’s decision, though, invites continued litigation: Nondiscrimination, coercion, and the question of mandatory attendance and penalties will continue to cause disputes. A town may not “coerce participation by nonadherents,” and legislative chaplains should not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”

The heart of future litigation will likely be whether the governmental prayer is sufficiently coercive or proselytizing, a point on which, in this case, the court split three ways (3-2-4). In fact, the court recognized that some of the prayers in Greece did violate this, but the plurality said that “absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” it will, in essence, look the other way (a troubling position in First Amendment doctrine). Setting aside whether the facts in Greece met that standard, this “fact-sensitive inquiry” is surely an invitation to litigation and discord.

Thomas G. Hungar, who argued for the town of Greece, New York, speaks to the media after oral arguments at the Supreme Court in Washington, D.C. on Wednesday (Nov. 6). RNS photo by Katherine Burgess

Thomas G. Hungar, who argued for the town of Greece, N.Y., speaks to the media after oral arguments at the Supreme Court in Washington, D.C. on Nov. 6, 2013. RNS photo by Katherine Burgess


This image is available for Web and print publication. For questions, contact Sally Morrow.

The court does little to explain what type of “coercion” will be necessary and, as the dissent points out, is relatively free in finding no coercion in this case (a religious minority might well see the matter differently). (Perhaps governmental prayer is like money in elections: It doesn’t really influence or coerce anyone ….)

Justices Clarence Thomas and Antonin Scalia go further; they would require that coercion be demonstrated through some forcible compulsion or fine for those who do not participate, ignoring Thomas Jefferson’s warning that government should not endorse a religious position or make a nonadherent feel less patriotic or less of a citizen, imposing “some degree of proscription perhaps in public opinion.”

There were alternatives to this troubling opinion: The court might have taken a strong position and declared that there should be no “official” legislative chaplains and no official governmental prayer — Madison’s position. This would solve the problem but not preclude public prayer. Citizens could offer a prayer during public comment periods. Board members could pray, including publicly, when not on “official business.”

This, though, was too much for the court, and it missed the opportunity to provide clarity on the narrow types of governmental prayers that it says are permissible.

The court recognizes that government chaplains cannot proselytize, that is, preach officially for conversion. A key reason they are permissible under the First Amendment is that “the principle audience for these invocations is not … the public but lawmakers themselves, who may find a moment of prayer or quiet reflection sets the mind to a higher purpose.”

The court fails, though, to explain what this means, an issue that the dissent takes up. Should prayers occur before the public is invited into the room? Should prayers be directed only at the board? Should the members themselves take turns invoking prayers, making it clear that they are personal and not “official” prayers?

Military chaplains provide a good example: No one would suggest that a military chaplain cannot pray with a soldier before he or she goes to battle or after in a sectarian manner — be that Catholic, Baptist, Muslim, Mormon, Jewish, Hindu, etc. Nor would anyone suggest that a voluntary prayer service couldn’t be sectarian: Catholic Mass Sunday at 10 a.m., Jewish prayer services Friday at 6:30 p.m., etc. That is far different from a general meeting of enlisted persons on military topics, parts of which they must attend, convened by an officer that is opened with a prayer addressed to the soldiers.

The court broadly agrees, to quote the dissent, that “however … individuals worship, they will count as full and equal American citizens.” We must take great care to implement this principle fully.

(The authors are legal scholars and historians who participated as amicus in the case.)

YS/AMB END RAGOSTA

14 Comments

  1. Two observations:

    First, there is certainly “coercion” present in town-council meetings, if one is attending one in order to get a problem solved. In such conditions one is likely to feel pressured to go along with whatever the council is doing, because if one doesn’t, and is seen being “the odd one out,” one may not get a fair hearing.

    Second, it’s interesting that people who ostensibly claim an obsession with “original intent” of the Founders, have adopted a position that stands clearly against that of the man who authored the First Amendment. I could be wrong … because after all, I’m just a cold-hearted, cynical, godless agnostic heathen and therefore am ignorant of such things … but that sure smells like “hypocrisy.”

    And given that it’s primarily Christians who’ve adopted this hypocritical position, it’s curious they’d do so, because the founder of their religion clearly forbid them ever to engage in hypocrisy. (Whoops, there I go again, daring to apply my own cold-hearted, cynical logic to very important sacred considerations that quite obviously are over my insolent, godless agnostic heathen head!)

    • pernitintaryondo

      Unfortunately, you do not understand that the First Amendment was not written by any one man. If you mean that Madison was tasked to compose the draft version, so what? The wording was altered and made clearer so the whole assembly could agree on a version.
      So the First Amendment does not mean what Madison wanted or what any individual wanted. If you are looking at the founders, you have to look at all of them, not just the ones that please you. And what makes you think that Madison would have differed with today’s decision? There is no way you could know that. You assume.
      You also show yourself to be overly emotional rather than scientific. Why would you assume that today’s decision promotes “hypocrisy”? Perhaps your own emotional response is getting in the way of your thinking abilities. You seem upset as an atheist that your fellow citizens will be allowed to pray, when the First Amendment clearly provides for Free Exercise of Religion. OK, you’re an atheist and you hate religion. So what? If people want to pray to Jesus to open a meeting that’s fine, we can accomodate all religions in this country. It’s a mystery why you can’t let other people have their religion. It costs you nothing to sit there for a minute while others engage in religious activities. You don’t have a veto over their lives, and they don’t want one over yours. As the decision says, you can even get up and give a little atheist speech from time to time.

      • You missed PsiCop’s point entirely. People who use arguments claiming “Founder Intent” are making phony arguments and looking for an end run around the wording of the Constitution and 200+ years of its interpretation. If there was such a variance in attitudes on what the Constitution’s wording meant among its drafters then all “Founder’s intent” arguments are crap, since no clear intent could be gleaned from such things.

        If government officials want to use their position to extol the wonders of Jesus, it is not OK. It is giving the impression that such views are not just those of the individual but of the government and the person’s position as well. Its an abuse of authority and meant to be perceived as an official endorsement of religious belief of the official.

        It is telling that most arguments for public prayer being used by people deliberately avoids the distinction between acts of an individual and acts of a government functionary in their official capacity. Avoiding all acknowledgement of the existence Establishment Clause.

      • While the First Amendment was modified from Madison’s draft, over time, religious freedom in the early republic was understood precisely in Madisonian/Jeffersonian terms. See Religious Freedom: Jefferson’s Legacy, America’s Creed. No other founder comes close.

  2. One of the lowest moments I have felt for America since it looked like Sarah Palin just might make it to the White House.

    Ugh. What a disgraceful decision to defend “Chaplains” as an arm of government.

    When Priests, Rabbis, Shamans, Voodoo doctors, Satanic Princes and Rastafarian decide the government needs to acknowledge them, too.
    And all of this at a time when religion is being abandoned by the younger generations…its nuts.

    Roberts, Thomas and Scalia are the worst thing to happen to this country since the Civil War.

    • pernitintaryondo

      I eagerly await the “Shamans, Voodoo doctors, Satanic Princes and Rastafarians” getting up to give the benediction.
      Because there are almost none of those in this country, I will probably have to wait for several years before one shows up at my town council. but when they do, we shall all have a good laugh.

      • Of course the point is the people most for public official prayer are the ones least likely to allow shamans, satanists, houngans, or rastafarians from giving benedictions. That is, except for token appearances so they can pretend the whole act is not guided by Fundamentalist Christians who want to act like they own the government.

      • Laugh?
        How about when the Lutherans disparage a Catholic position? Or Charismatics disparage Evangelicals?
        The religious mob won’t need Rastafarians to sink their own boats.

        You have absolutely no clue what ignorance and fire you are playing with by supporting this inflammatory court decision.

      • Before our town council meeting I propose the following prayer:

        “Oh Holy Mermaid of Hate, Who drowneth the children who cannot swim, we beseech you to bless this gathering, but only send those good blessings onto those council members who believe in you”

        I’ll sue the town if they don’t let me read it.

        Thanks Justice Scalia and Roberts for ignorantly opening up a hornets nest for all of us!

  3. Justice Kagan provided some examples of what “coercion” might mean. Town council meetings are often small, as are Superior Court proceedings in many cases, and if you’re there, say, with a permit appeal, and they ask those present to rise for the invocation, what do you do?

    And what’s SCOTUS’ majority’s next move? Overturning the “Lemon test” regarding official separation, maybe as soon as next term?

  4. One wonders how much longer hurt feelings are going to give folks standing to sue in Federal Court. There have been an increasing number of law review articles advocating tightening standing requirements so that the Courts can gracefully exit from the hash they’ve made in trying to interpret the free exercise clause so it doesn’t swallow the establishment clause, and vice versa. I’m not advocating this, just saying the thought is out there that in order to have standing the aggrieved citizens in this case would have to show that the Council treated them unfairly with regard to whatever issue brought them to the meeting in the first place. The Justice’s may or may not read law review articles, but their clerks do.

  5. Jonathan J. Turner

    Here’s the syllabus of all the briefs, both merit and amicus:

    http://www.americanbar.org/publications/preview_home/12-696.html

    The petitioners’ reply brief is the one that this column is trying to spin.

    Here is a hometown video of the true initiator of this exercise in social levelling, the missing plaintiff, Ms. Nancy Braiman of Brighton, NY.

    http://www.13wham.com/news/features/top-stories/stories/original-greece-complainant-reacts-ruling-11667.shtml

    Now hear the parable of the missing plaintiff:

    The legal plaintiffs, Susan Galloway and Linda Stephens, religiously identify themselves as a Jew and an atheist. In the above video clip, Ms. Braiman identifies herself as Jewish; but this is misleading, for at the time (February 2007) that Ms. Braiman became offended at the Greece Town Meeting Christian prayers, she identified herself to the local Gannett newspaper (Democrat & Chronicle) as Unitarian Universalist.

    And I can confirm this, first of all, because I saw her at Unitarian Universalist services I attended during that period (2007). I was a member of one of the two UU congregations in Rochester, and, because I saw what these folks were up to, I took a somewhat public issue (in a Democrat & Chronicle blog) with the animus and activism of Ms. Braiman toward our neighboring town to the West, and tried to warn the ordinary citizens of Greece to the threat posed by Unitarian Universalist activist zeal, and how it provides an element of plausible religious moral authority to the ACLU’s various causes:

    “In view of their histories of advocacies, it is unlikely to be a
    coincidence that the ACLU’s overall political aspirations and values are
    totally congruent with the UUA’s religious aspirations and values. Certainly,
    all these values are totally consistent with Ms. Braiman’s complaint. Therefore either the ACLU is a religious organization, or the UUA is a political action committee.” (June 27, 2007)

    Which is another way of saying: if the ACLU prevailed in every legal action it wished, Unitarian Universalism would default to become the USA’s official state religion. :)

    Ms. Braiman and her allies (who shared the animus for Christianity I had seen so often in UU activist circles) apparently realized that neither she nor the UU “faith” were the most suitable for a test-case plaintiff, so by the fall they recruited two actual Greece residents, neither of whom would identify as being UU either (shhh!).

    In November, 2007, after reading about their “sparsely attended” public meeting on the issue at the Greece Town Hall, it became clear to me that they were ramping up for their test case.

    So I just called up the office of the Greece Town Supervisor, and I had a nice long conversation with an aide, and I laid the whole scenario out as I saw it unfolding. They still had not taken the situation to be more than just a local thing. I told them that this was the UU/ACLU strategy, that it was bigger than just a couple of complaining citizens, that if the complainants could not COERCE the town with the THREAT of a LAWSUIT, they would indeed FILE A LAWSUIT, and they would have a lot of pro-bono ACLU esquires jumping all over them, JUST LIKE HOW THE UUA & ACLU CAMPAIGNED AGAINST THE BOY SCOUTS.

    So now it can be told, I have the satisfaction of a small part in 12-696, being a kind of Paul Revere to the citizenry of the Town of Greece, NY, back in 2007.

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