With just a few pages of legal opinion, U.S. Supreme Court Justice Anthony M. Kennedy ripped a sizable hole in the wall that Thomas Jefferson said is supposed to separate church and state.
“Legislative prayer, while religious in nature, has long been understood as compatible with the [First Amendment],” Kennedy wrote for the majority in Town of Greece v. Galloway, a case sponsored by Americans United that sought to end official sectarian prayers offered before local town board meetings. “Respondents’ insistence on nonsectarian prayer is not consistent with this tradition.”
In Kennedy’s majority opinion, a 5-4 decision released May 5, the high court said that Marsh v. Chambers, a 1983 ruling that permits state legislatures to pay for official chaplains and open sessions with prayers, applies to the town of Greece, N.Y.’s prayer practice.
The court, therefore, did not accept Americans United’s argument that local governments are fundamentally different from larger lawmaking bodies, and therefore must only sponsor non-sectarian or generic prayers in order to avoid running afoul of the U.S. Constitution. This decision means that the town of about 94,000 outside Rochester may invite Christian ministers to make invocations in the name of God or Jesus Christ at its monthly board meetings – all with the approval of elected officials.
The decision relied upon what Kennedy called “a tradition long followed in Congress and the state legislatures” as an excuse for placing few restrictions on the invocations endorsed by law-making bodies. In what often read like a Religious Right history lesson, Kennedy in his opinion discussed the many examples of pre-meeting prayers in U.S. history.
“One of the [U.S.] Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking ‘the grace of our Lord Jesus Christ, &c,’” Kennedy wrote. “The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”
Critics, including Americans United, rejected the idea that America is not fundamentally different today than it was in the 18th century.
“This ruling is out of step with the realities of modern-day America,” Americans United Executive Director Barry W. Lynn said in a media statement. “In a country where pluralism and diversity are expanding every day, a Supreme Court decision that gives the green light to ‘majority-rules’ prayer at local government is exactly what we don’t need.”
Kennedy also offered up the idea that some prayers are not mainly religious in nature, even though they may invoke God. He turned to the founding period to make this point, noting that even from the earliest days of the Continental Congress (which pre-dates the United States and was not bound by the U.S. Constitution) prayers were offered to seek justice for the people or wisdom and guidance for lawmakers rather than purely to praise a deity.
But prayers like that are not what drove Greece residents Susan Galloway and Linda Stephens to complain about the town board’s invocations in the first place. Galloway, who is Jewish, began attending town board meetings frequently in 2005; Stephens, an atheist, started attending the sessions regularly in 2001.
Until 1999, the Greece Board opened its meetings with a moment of silence. But that year, after 18 months in office, then-Town Supervisor John Auberger, a member of St. Lawrence Catholic Church and the Knights of Columbus, changed the policy so that meetings would open with a prayer given by the “chaplain of the month.”
Since then, because the board has not required that the invocations be inclusive and non-sectarian, the prayers have almost always been Christian. Official records showed that between 1999 and June 2010, about two-thirds of the 120 recorded invocations contained references to “Jesus Christ,” “Jesus,” “Your Son” or the “Holy Spirit.” And almost all of the prayer-givers have been Christian clergy.
Galloway and Stephens decided in 2007 to take their complaint straight to Auberger, but he declined to meet with them. Other officials essentially said the only options were to not listen to the prayers or stop attending meetings.
Unsatisfied with those choices, Stephens and Galloway sought help from Americans United.
AU attorneys tried to settle the matter outside court. In July 2007 they sent a letter urging the town board to stop the prayers completely or choose invocations that are nonsectarian.
But the Greece board not only refused to change its ways, it became openly hostile to Galloway and Stephens – so they went to court.
The first court to hear the case didn’t side with plaintiffs Galloway and Stephens. In an Aug. 5, 2010, decision, U.S. District Judge Charles J. Siragusa dismissed the case, even though he acknowledged that the “vast majority of prayers…were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ.”
Americans United appealed that decision and earned a very different outcome the second time. In a May 17, 2012, opinion, the 2nd U.S. Circuit Court of Appeals explained that the town’s procedures “virtually ensured a Christian viewpoint” because nearly all of the prayers were delivered by Christian clergy. The town violated the First Amendment, the unanimous three-judge panel said, by presenting a “steady drumbeat of often specifically sectarian Christian prayers.”
Judge Guido Calabresi, writing for the 2nd Circuit panel, said, “We conclude that an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity” and that “a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect.”
But that, of course, wasn’t the end of the matter.
The Alliance Defending Freedom (ADF), an Arizona-based Religious Right legal group founded by radio and television preachers, serving as counsel for the Greece board, asked the entire 2nd Circuit Court to hear the case. When that request was denied, the ADF and its allies turned their attention to the Supreme Court, enlisting an army of high-profile Religious Right sympathizers to flood the court with amicus briefs, including pleas from a gaggle of U.S. House members (three of whom are no longer in Congress) and a group of 18 state attorneys general. That pressure likely proved too great for the high court to pass on this complex prayer issue.
Douglas Laycock, a University of Virginia law professor and a seasoned litigator before the Supreme Court, argued the case for Americans United. Laycock is well respected by both sides of the church-state debate, but the court’s conservative tide was too strong.
Ultimately the ADF won the Greece case thanks to Kennedy and his cohorts, but it was not a total victory. Kennedy acknowledged that certain types of government-sponsored prayer are problematic if they should “fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort.”
According to Kennedy, problematic prayers include those that “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion....”
Unfortunately, Kennedy offered no guidance on how prayers shall be regulated in the future to ensure that they are free of unapproved content, nor did he say what recourse there will be for anyone who is offended by a government-endorsed prayer that promises damnation for non-believers.
Critics are troubled by these omissions.
“The Supreme Court just relegated millions of Americans – both believers and nonbelievers – to second-class citizenship,” said AU’s Lynn. “Government should not be in the business of forcing faith on anyone, and now all who attend meetings of their local boards could be subjected to the religion of the majority.”
Although Kennedy wrote for that majority, the decision was not all about him. The dissenting opinion, written by Justice Elena Kagan and joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, captured Americans United’s fear that minority rights will not be protected in the wake of the Greece decision.
“I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality – the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian,” Kagan wrote.
In a dissent that spoke to the core of AU’s argument, Kagan showed a keen understanding of why local government is fundamentally different from larger government bodies, such as the Nebraska Legislature, which was the subject of Marsh.
Kagan rejected Kennedy’s claim that prayers before Congress and state legislatures are analogous to those before local boards, noting that there is a “gap — more like, the chasm — between a legislative floor session involving only elected officials and a town hall revolving around ordinary citizens.”
Kagan reinforced that point with a hypothetical in which “a Muslim citizen of Greece goes before the Board to share her views on policy or request some permit.” Unlike the U.S. Congress or state legislatures, with which private citizens rarely interact face-to-face, Kagan noted that local governments usually require direct participation from those they represent.
“But just before [the Muslim citizen] gets to say her piece, a minister deputized by the Town asks her to pray ‘in the name of God’s only son Jesus Christ,’” Kagan proposed. “And now she faces a choice — to pray alongside the majority as one of that group or somehow to register her deeply felt difference. She is a strong person, but that is no easy call — especially given that the room is small and her every action (or inaction) will be noticed. She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ’s divinity, any more than many of her neighbors would want to deny that tenet.”
Of course not all the justices were so sensitive. Justice Clarence Thomas wrote a concurring opinion, seemingly because Kennedy did not go far enough to suit him. In what can charitably be described as an extreme point of view, Thomas offered only a grudging concession that church-state separation is even outlined in the U.S. Constitution.
“[The First Amendment] probably prohibits Congress from establishing a national religion,” he said.
Flying in the face of well settled law, Thomas went on to assert that nothing in the Constitution prevents states from establishing official religions. (Thomas seems to doubt the very existence of the Fourteenth Amendment, passed after the Civil War, which makes the First Amendment applicable to the states.)
This case drew extensive media coverage – and swift reactions from a celebratory Religious Right. American Family Association President Tim Wildmon said in a statement reading: “We are extremely pleased with the Court’s ruling, as it upholds the religious liberty guaranteed in our Constitution and also recognizes the centuries of public prayer that have characterized our nation.”
The Family Research Council and other Religious Right groups joined the chorus of praise.
Interestingly, not all conservative Christians agreed with that perspective. In an opinion piece for Christianity Today, Carl H. Esbeck, a law professor at the University of Missouri, said the Greece decision is not a win for Christians or the faith community at large.
“That the Christian faith receives succor from the city’s prayer policy makes it less likely that the church will raise its prophetic voice to criticize the town board when it undertakes bad policies or its officials misbehave,” he wrote.
The court’s decision also shows a disregard for the near-quarter of Americans (23 percent) who said in a Farleigh Dickinson University poll released in April that they don’t support pre-meeting prayers sanctioned by government.
Galloway and Stephens were ultimately fighting for this rather sizable minority, and they expressed concern that non-believers and non-Christians will feel excluded by their own government.
“We shouldn’t be made to feel that we are not on equal footing when it comes to our own government,” Galloway told Church & State.
Added Stephens: “Government is supposed to represent everyone, not just those who believe in God. I worry that this decision by the Supreme Court will leave minorities and non-believers feeling persecuted.”
It seems Galloway and Stephens already have reason to worry. The Rochester Democrat & Chronicle reported that on the evening of the Greece decision, the board held a special session in which a priest delivered an opening prayer.
“Thank you Lord, for being our source of guidance today,” the Rev. Peter Enyan-Boadu of St. John the Evangelist Church said.
In reflecting on her case, Galloway was struck by the fact that none of the high court’s three Jewish justices agreed that Greece’s prayer practice had been constitutional.
“It’s interesting that none of the justices from minority faiths agreed with the opinion of the majority,” she said.
What happens next? Some local governments are already planning to change their prayer policies. In Roanoke County, Va., a local newspaper reported that Supervisor Al Bedrosian announced that henceforth, all official prayers should be Christian in nature. Bedrosian said he would not consider non-Christian supplications because, “I think…we have to say more or less that we’re a Christian nation with Christian ideology.”
In Carroll County, Md., a federal court lifted a ban on the use of sectarian prayers during commission meetings. Commissioner Richard Rothschild celebrated the order by attacking the “so-called separation of church and state.”
Meanwhile, the American Humanist Association has announced it will offer training and assistance to non-believers who wants to offer secular invocations before government meetings.
Americans United is jumping into the fray as well. AU intends to monitor the situation nationwide to make sure that open-door policies really include everyone and that groups like Wiccans, Muslims, Buddhists and humanists are not excluded.
In addition, AU will help those who believe that the prayers offered in their communities run afoul of Kennedy’s standards by disparaging other faiths or engaging in aggressive forms of proselytism.
“Greece is a poorly reasoned decision, but it doesn’t leave us without options,” said AU’s Lynn. “This isn’t over yet.”