On Monday, 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.
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.
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. Via RNS.
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