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Up Is Down, Down Is Up

Up is down and down is up. Monday was that kind of day. I’ve been studying and writing about the religion clauses for thirty years, so I know Establishment Clause jurisprudence has never been what you might call cut and dry. The Supreme Court has wrestled with this issue for decades. But over the last sixty or so years, there has been an ongoing effort to implement some sort of standard to allow for consistency. Eventually the Lemon Test coalesced out of the primordial stew of Establishment Clause case law: no excessive entanglement, no government endorsement of religion, and a primarily secular purpose that neither advances nor inhibits religion. Under Justice O’Connor, endorsement emerged as the thing to be avoided. The standard evolved, and has always been flexible. These matters often arise out of unique circumstances, so while attention must be paid to judicial and historical precedents, they are also decided on a case-by-case basis. Courts have to look at the facts of a particular case. They can’t conflate the facts of a prior case with those of the case in front of them. Or at least they shouldn’t. But on a day where up is down and down is up, anything is possible.

Monday evening I listened to the chief legal correspondent for a national network explain the Court’s decision in Town of Greece v. Galloway on the 6:30 news. She dismissed the ruling as narrow, and one that shouldn’t have any effect on other church state issues such as school prayer or religious displays on public property. She essentially said this was just not that big a deal. Most people don’t get their news from the networks anymore, but for anyone who was looking for a basic understanding of the Court’s ruling and how it might affect them, they didn’t get it from that broadcast. Because they didn’t hear how enormous a departure from settled law the decision is and how far-reaching it has the potential to be. Nothing to see here. Move along. More evidence that the laws of physics seemed to have been made as inoperable as the First Amendment.

Here, in no particular order, is what is now true according to the Supreme Court plurality in Town of Greece v. Galloway. Opening a public meeting of local government with sectarian prayer is just fine. A multi-year pattern of prayers from one religion, and one religion only, is also fine. It’s particularly good if those prayers are Christian prayers, because when a majority of the population is Christian, that’s the faith tradition that we assume will be heard. If other religions are represented by smaller percentages in the population, then, obviously, you can’t expect to hear from those traditions with any regularity. It has now been explained that invocations by agents of the government that regularly speak of Jesus, the Cross, and being saved by Jesus Christ in no way violate any legal or historical principles of separation. You should be aware that prayers offered in Jesus’ name, with specific references to Christian theology, are actually universal in theme, and merely ceremonial in nature, like the saying “under God” in the Pledge of Allegiance. And besides, this is the way the Founders wanted it. They prayed all the time, and if they did it, it must be the right thing and we should do it too.

And we have been expertly instructed in learning not to be overly sensitive. Jews, Hindus, Muslims, Buddhists, Sikhs, Atheists, Animists, Wiccans and anyone who prefers their government interactions without a heaping spoonful of that old time religion, get used to it. Don’t be uncomfortable. Be “reasonable”, because a “reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents in the pews.” 572 U.S.___(2014).The Court notes that even Atheists are allowed to offer prayers if they would like. No one is stopping them. A guest prayer-giver who asks community members at a public meeting to stand and pray, or bow their heads and pray, is not really talking to the people they’re inviting to participate. They are really just talking to the Town Board. Even though they are facing the public and asking them to join in prayer.

And, although the Town of Greece case involves exclusively Christian prayers at local meetings attended by friends, neighbors and community members all seeking to participate in local civic life, the Court tells us that what really matters is how Congress invites representatives of many faiths to offer prayers before Congressional proceedings, and that the Nebraska State Legislature uses non-sectarian prayers before its sessions. Clearly, this means that the practice of having only sectarian prayers from the Christian tradition at local town meetings, definitely passes muster.

Justice Thomas reminds us that the Establishment Clause shouldn’t apply to the states at all, so states and towns should be free to establish a government-sponsored religion. He’s also not sure it prevents the federal government from establishing a State religion, although he thinks this is “probably” the case.

And we got some helpful advice. Thanks to yesterday’s decision, we now know that calling attention to oneself by leaving the room while everyone else prays, is a viable option. And the Town’s suggestion that the women who complained about the practice should do just that, was not coercion either. We are also comforted to learn that when a guest Christian pastor admonishes you for being ignorant of this country’s Christian history, and stresses that you are in the minority (a bad thing), that is not coercion. Nor is a long pattern of ignoring requests to eliminate the practice of offering only Christian prayers even though maintaining this policy makes certain residents feel marginalized because they are not Christians. The fact that the town kept having Christian prayers at the beginning of its meetings so that it looks like it’s endorsing Christianity as the official religion of the Town of Greece, is no longer a critical point. In fact, it’s irrelevant. Coercion is what counts. And you should be delighted to know that just because you feel like you are being coerced, doesn’t mean you are.

Once upon a time any one of the preceding factors would have indicated a problem under the First Amendment. Taken together, they would have pointed to a blatant violation of the Establishment Clause. Up until around ten o’clock Monday morning, May 5, 2014, that is.

And if a sustained practice of opening town meetings with prayers in the name of Jesus Christ is no longer problematic, what exactly would violate the Establishment Clause? The Court tells us that non-sectarian prayers are inappropriate because that involves the town dictating or evaluating the contents of a prayer. It is also virtually impossible to formulate a prayer that would be acceptable to everyone. The majority notes that trying to please a majority of people with a non-sectarian prayer is the equivalent of saying majority rules with respect to religion, and that is unconstitutional. The majority did point to the Town’s population as a justification for the pattern of exclusivity, but that type of majority rule is, apparently, allowed. Requiring the Town to take simple administrative steps to invite representatives of faiths other than Christianity would also violate the Establishment Clause. Because it’s too difficult and would take too much time and would result in excessive entanglement between government and religion. Interestingly enough, excessive entanglement is a vestigial prong of the fading-fast Lemon Test. The Court doesn’t look at endorsement much anymore, and we are clearly headed back to a time when the Court actually seems to like a primary purpose that advances religion. But the entanglement piece comes in handy when you’re trying to avoid making someone do something as onerous as check the phonebook or do a quick Google search for a non-Christian, local, religious organization. So, to sum up: requiring the town to offer non-sectarian prayers is illegal. And mandating that the town take basic measures to assure prayer diversity at its meetings is also illegal.

So, what does this new way of looking at the Establishment Clause mean for the rest of us? The Court has given powerful ammunition to those who reject the notion of a “wall of separation” between church and state. Earlier this year, the chief justice of the Alabama Supreme Court declared that the First Amendment applies only to Christians. The Town of Greece decision could be interpreted as lending some credence to that claim. And, in the wake of yesterday’s holding, we are hearing of a challenge to the non-sectarian prayer policy of Roanoke, Virginia, on the basis that most of Roanoke’s citizens are Christian. And the respondents in this case, Susan Galloway and Linda Stephens, will be more keenly aware than ever of their minority status. Restrictions on school prayer and religious observances and displays in other public settings might all be reconsidered in light of this sweeping holding.

In her dissent Justice Kagan sums up what the Establishment Clause is supposed to be about:

That is America’s promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming that they, like anyone ‘who live[s] under [the Government’s] protection[,] should demean themselves as good citizens.” (quoting George Washington’s Letter to Newport Hebrew Congregation)

She goes on to say, “For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”

It may take years, but perhaps we can get back to where we were before 10:00 a.m. Monday morning. A time when the concept of a “majority religion” occupying a place of privilege in government would have been seen as a betrayal of our heritage and the antithesis of everything the Establishment Clause was meant to prevent.



About legalfeet

I'm an essayist, commentator, lawyer and reporter with expertise in Constitutional Law, United States History, religion and public education. I cover current issues involving the First Amendment religion clauses, modern religious movements, scientific history and developments and the events in which these areas converge.


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© Robin Radner and Legalfeet, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Robin Radner and Legalfeet with appropriate and specific direction to the original content.
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