News of the Supreme Court’s decision in Town of Greece v. Galloway, allowing sectarian prayers before town meetings, put me in a snit. After thinking about it for a while, and reading the opinions, I got more comfortable with it, but some qualms remain.
Simplifying somewhat: Since 1999, Greece, New York has begun its town meetings with a prayer by local clergy. Town officials called local churches listed in a chamber of commerce directory, and asked if a clergymen would deliver a prayer to open that month’s town meeting. Since all the churches in the directory were Christian, so were all the clergy and all the prayers. (A Baha’i temple located in Greece but with a Rochester mailing address, and two synagogues just outside town limits, weren’t in the directory.) The clergy would sometimes ask people at the meeting to stand, begin with “Let us pray,” and invoke Christ and the Holy Spirit.
The Court’s conservatives—Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas—found the prayers consistent with the First Amendment’s Establishment Clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Court’s liberals—Justices Breyer, Ginsburg, Kagan, and Sotomayor—saw it differently.
From the first, Congress has begun its sessions with prayers. State legislatures also frequently begin sessions with prayer, a practice the Court approved in 1983. Given that history—and the political realities—there was never a chance that prayers would be banned, and neither the plaintiffs in Galloway nor the four liberal Justices requested as much. The plaintiffs sought only to limit the clergy to “inclusive and ecumenical” prayers that refered to a “generic God” and that would not associate the government with any one faith or belief. The Court’s liberal dissenters would have settled for even less: The town could either limit the prayers’ sectarian content or it could invite clergy of many different faiths to offer the prayers.
The Court’s majority didn’t buy it, holding that public bodies can begin their sessions with the sectarian prayers of a single faith. There are, of course, limits: The prayers cannot be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
Justice Kennedy, writing for the majority, offered three arguments. First, the Congress that approved the First Amendment opened its sessions with sectarian prayers, so they must have understood the practice as compatible with the Establishment Clause. Yes, but over the ensuing two-and-a-quarter centuries a number of the Court’s decisions have understood the Establishment Clause to restrict all sorts of religious observances in the public realm.
Kennedy’s second argument was that “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.” True enough, but these aims could just as easily be met by non-sectarian prayers.
Kennedy’s third argument was that it would be impermissible, having invited a clergyman to give an invocation, to then restrict the nature of his prayer. I take the point, but there would be no restriction if, as the dissent advocated, clergy representing different faiths were to give the prayers.
Of course, having sectarian prayers given by diverse divines still leaves out people of my persuasion, the atheists. In the nature of things, there can’t be atheist clergy, and atheists can’t offer prayers. Hence my snit. I was offended that public proceedings could regularly begin with ceremonies that leave non-believers on the outside.
Then I calmed down. For one thing, an atheist’s reaction to prayer is different from a believer’s. A believer, confronted by prayers of a different religion or sect, might worry that he will offend his co-religionists or his god by appearing to participate; an atheist, in contrast, just views the whole thing as a mummery, evidence of the occasional irrationality of his fellow man, akin to mud-wrestling, hot-dog eating contests, or Fox News. Of course, the prayers bring vividly to the fore the atheist’s isolation in a world of believers, but an atheist who hasn’t appreciated this really needs the eye-opener that public prayer can deliver.
(Personal anecdote: My son was married last year. Between the happy couple, their four parents and two siblings, only one attends a church with any regularity. Nonetheless, it was thought desirable to have a clergyman officiate, no doubt to lend dignity to the occasion, and to suggest that the events of the day were taking place on a larger stage. A clergyman was found, and it was thought to ask him to limit himself to ecumenical prayers to reflect the views of the couple and their families and because of the guests’ diverse faiths (or lack thereof). But my son objected on Kennedyesque grounds: You couldn’t ask a priest to officiate and then limit what he said, a view I found commendable. So Jesus Christ made an appearance at several points in the proceedings (to the surprise of many, including me), and was then largely forgotten. It was a lovely wedding.)
I also reflected that having clergy of different faiths deliver sectarian invocations may confer a secular good. Religious differences often cause misunderstanding and strife. Having people respectfully hear a diverse group of clergy invoking Christ, Allah, and the Buddha may give these religions and their followers increased standing in the community, lessening the sense of their otherness.
My unease about Galloway returned, however, when I considered another question: How did this case ever get to the Supreme Court? In 2008, after the plaintiffs complained, two Jewish layman and a Wiccan priestess asked and were allowed to give the opening prayer, and the town invited the chairman of the Baha’i temple to deliver a prayer. But after 2008 only Christian clergy officiated. What happened?
The town’s willingness to fight an expensive legal battle rather than continue the 2008 inclusive practices that might have satisfied the plaintiffs or the courts seems odd. Perhaps someone who wanted the litigation to go forward realized that more inclusive practices might moot the case, and prevailed upon the town to avoid non-Christian clergy. The Galloway litigation may have been part of the program of those who insist that America is a Christian country and long for a Christian Establishment, in practice if not in theory.
If the town deliberately abandoned its 2008 inclusionary policies so that the case could go forward, then the premise on which all the Justices relied—that the town was not deliberately discriminating in favor of Christian clergy—would be false, at least as to post-2008 practices. Was the Court gulled?