Greece Stain

May 05, 2014

Supreme Court building being remodeled last summer
The U.S. Supreme Court today released its ruling on the important local legislative prayer case Town of Greece v. Galloway (for background see my Ethics Daily article). Like too many other important rulings recently, this one came down 5-4 and went the wrong way. Although I expected it to be a 5-4 ruling and likely go the direction it did, I did not expect the ruling to be so problematic. The majority opinion allowing the prayers makes a mimicry of history, a muddle of logic, a mess of reality, and a mockery of faith. Multiple problems with the ruling emerge.

First, the majority opinion defends legislative prayers (as the Court previously has) based in large part on the historical example of the U.S. Congress. The argument guiding here is that if something is a historical practice, then it must be constitutional. This is pretty poor logic since we know that many people in Congress and many of the presidents - including one of the "founders" (John Adams) - did things that were unconstitutional. Although historical practice can be informative and should be considered, that alone does not make something right. Yet, the majority opinion, written by swing vote Justice Anthony Kennedy contends:
Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.
Although this could be a problematic standard in general, it is actually even wrong in the Greece case. Even if one ignores the fact that a local town council meeting is substantially different (in terms of audience and citizen participation) than the U.S. Congress, the mere fact that the first Congress created the office of chaplain does not mean it was "a practice that was accepted by the Framers" and "withstood the critical scrutiny." The creation of the chaplain's office merely means members of the first Congress voted for it. Yet, James Madison, the key "framer," opposed the practice and criticized it as unconstitutional. History is not so unanimous after all. Many "founders" opposed the idea of separation of church and state (like Adams) but, fortunately, Madison and Thomas Jefferson won that debate (and Jefferson made Adams the first one-term U.S. president). Quite tellingly, the majority opinion shows cites Adams more than Madison and Jefferson combined. This ruling is based on a poor understanding of history.

Second, this majority opinion goes beyond previous rulings that encouraged nonsectarian prayer and instead specifically promotes allowing sectarian prayers in official, governmental meetings. Kennedy wrote they were "rejecting the suggestion that legislative prayer must be nonsectarian." He added:
Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfet­tered by what an administrator or judge considers to be nonsectarian.
The latter point is correct. If government allows prayer, then it must be as "conscience dictates." Kennedy particularly warned that government must not be allowed to censor the content of prayers. However, Kennedy's logic falls apart throughout the ruling. For instance, he later wrote:
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, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbeliev­ers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.
The problem with Kennedy's argument is he is judging some prayers for being inappropriate based on content. Yet, what if the "conscience" of a minister praying "dictates" that they "threaten damnation" or "preach conversion"? How could Kennedy disallow such prayers when he already said the government must allow the minister to prayer as "conscience dictates"? Similarly, he later wrote:
The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a "spirit of cooperation" among town leaders.
In that passage, Kennedy was attempting to justify the sectarian nature of the prayers by noting they also include "universal themes." His inference seems to be that the universal themes make the prayers okay, but that would be a content matter. What if one's conscience does not include offering such themes? Such prayers, under Kennedy's logic, must still be allowed so his pointing to the content to defend these prayers is irrelevant and hypocritical. This ruling is based on a poor understanding of logic.

Third, the majority opinion includes some unrealistic and problematic assessments about the importance of religious liberty. Kennedy derides the idea that official prayers could disadvantage citizens appearing before their local legislative body. He wrote:
Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy.
Perhaps Kennedy should venture out of the beltway before making such sweeping claims about how Americans act in reality. While I wish his statement were true, I have seen too many Christians who would in fact act rudely against such "pagans" who refused to stay during the prayer. In the main dissenting opinion, Justice Elena Kagan rightly noted the troubling implications of the majority's opinion for religious minorities in civic life. The majority opinion too quickly dismisses the concerns of the religious minorities, even though the First Amendment's religious clauses were designed specifically to protect the minority (and not to add to the power of the majority). Even worse, Justice Clarence Thomas wrote a concurring opinion (also joined by Justice Antonin Scalia) that actually advocated for even more church-state establishment. Thomas questioned "if the Establishment Clause were properly incorporated against the States" (through the 14th Amendment). His argument would allow states (and cities) to take a step backward and wipe away religious liberty rights of minorities. Additionally, Thomas even downplayed the significance of the First Amendment:
As an initial matter, the Clause probably prohibits Congress from establishing a national religion.
Probably? No, it actually does! As bad as Kennedy's ruling is, Thomas and Scalia want to go even further in rolling back the religious liberty rights of minorities and the two pretend like there would be no major problems from their arguments. This ruling is based on a poor understanding of reality.

Fourth, the majority opinion treats prayer as nothing more than rhetorical garnish. Kennedy described the legislative prayers in questions as "[c]eremonial prayer" serving "a permissible ceremonial purpose." Ceremonial? Such a treatment of prayer fails to recognize its profound, sacred importance. Prayer is not merely ceremonial but rather part of an intimate religious act involving the divine. Kennedy added:
The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage.
Kennedy treats prayer as something ceremonial to add gravity to a governmental meeting. Instead, it is a sacred act with much more gravity than a local town council meeting. Additionally, prayer is about religious values that transcend our nation's heritage (unless the U.S. is the "god" being addressed in the prayer). This is the biggest problem with the majority's ruling: it treats prayer as a minor, civic act. Kagan rightly critiqued the majority on this attitude. She wrote in her dissent that "the majority misjudges the essential meaning of the religious worship in Greece's town hall, along with its capacity to exclude and divide." She added:
...the not-so-implicit message of the majority's opinion - "What's the big deal, anyway?" - is mistaken. The content of Greece's prayers is a big deal, to Christians and non-Christians alike. A person's response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity - who that person is and how she faces the world.
Amen! The opinion of the majority should be rejected not because prayer is not that important but precisely because it is important. This ruling is based on a poor understanding of faith.

Although the Supreme Court offered a problematic ruling, this does not mean that town councils have to open with prayer or that Christians have to offer such prayers. Although many Christians will applaud this ruling, hopefully they will give greater pause to its implications. Fortunately, some still work to give a prophetic witness instead of striving to be "a minister deputized by the Town" (as Kagan wrote in her dissent). One such group is the Baptist Joint Committee for Religious Liberty, who noted their disappointment with today's ruling. Kagan approvingly cited their friend-of-the-court brief in her dissent. Hopefully the voices urging religious liberty for all will eventually find support among the majority.