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?
—Stan
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