The Supreme Court is hearing oral argument today in Greece v. Galloway, a case about lawmakers who begin their assemblies with prayer. The dispute has nothing to do with the financially beleaguered Aegean republic, even though one of the prayers at issue hailed Athena and Apollo. This Greece is a town in upstate New York, near Rochester. In 1999, the town began to open its Board meetings by praying.
In 2008, local residents Susan Galloway and Linda Stephens sued to stop the opening prayers. They are represented by lawyers from Americans United for Separation of Church and State, a group that was founded shortly after World War II to combat what its members believed to be a growing Catholic menace to American democracy. They claim that Greece is establishing religion, and in May 2012, the Second Circuit Court of Appeals agreed with Stephens and Galloway. The Supreme Court will now review that holding, and a final decision is likely by March.
My prediction about the outcome could be cut and pasted from all-too-many columns like this one: four liberals (Ginsburg, Kagen, Sotomayor, Breyer) at odds with four conservatives (Scalia, Thomas, Roberts, Alito), and so it all depends on what Anthony Kennedy decides to do. About that, you might as well consult a Ouija Board. Or pray.
It is easy to see the factual basis for the lower court’s holding. The court found that “A substantial majority of the prayers in the record contained uniquely Christian language” and “Roughly two-thirds contained references to ‘Jesus Christ,’ ‘Jesus,’ ‘Your Son,’ or the ‘Holy Spirit.’” So Judge Guido Calabresi, writing for the Second Circuit panel, concluded that Greece “identified” itself “with Christianity in violation of the Establishment Clause.”
It is equally easy to see the legal basis for the court’s holding. The Supreme Court has long asserted that our Constitution requires government to be “neutral,” not only among different religions, but also between religion and what the Court usually calls “non-religion.” Public authorities large and small are supposed to avoid giving any reasonable appearance of favoring, approving, or “endorsing” religion as such. Lawmakers endorse (and affirm and favor) religion when they pray—as anyone who prays would do.
It is also easy to see that the Second Circuit got the case wrong. The Supreme Court will have to reverse the ruling—that is, if the original understanding of the Constitution, an unbroken practice since the founding, a basic grasp of what prayer is, and the Court’s own precedents have anything to say about it.
Let’s take a close look at that last factor—Court precedent—because it accurately reflects the first two and depends upon the third.
Since 1962, the Supreme Court has issued several rulings on school prayer, and a few more on other displays of religion (the Decalogue or a crèche) in public places. The Court applied its “neutrality” principle in these cases, and found against the particular religious manifestation in most of them. But each of those sorts of cases is distinguishable from legislative prayer. Neither impressionable schoolchildren nor entire populations of passersby are involved at town meetings. Legislative prayer is different in one more way: when the Court, in 1983, upheld Nebraska’s legislative prayers, its opinion studiously declined to apply the standing “neutrality” principle against “endorsing” religion. The Justices in Marsh v. Chambers—the Court’s only legislative prayer case to date—relied instead upon the practice’s impeccable historical pedigree, evaluated in light of a decent understanding of what prayer is.
The Second Circuit nonetheless applied the background norm about “neutrality” and “endorsement” to Greece’s prayers. But Judge Calebresi’s rejection of Marsh runs much deeper than that. He declared repeatedly in Galloway v. Greece that legislative prayer was in principle constitutionally permissible, and that his ruling was limited to the specific facts of this particular case. On the contrary: Calebresi utterly rejected the possibility and would radically rewrite the constitutional law of legislative prayer. That he might not fully realize it makes his opinion all the more regrettable.
Marsh v. Chambers upheld the prayer practices of Nebraska’s unicameral legislature. For sixteen years, Cornhusker lawmakers began each session with a prayer offered by Chaplain Rev. Dr. Robert E. Palmer, a Presbyterian minister. Rev. Palmer was paid out of public funds. All of this chaplain’s prayers addressed a divine being. They all in one way or another implored God to guide the assembly’s deliberations. In Rev. Palmer’s own words: “I strive to relate the Senators and their helpers to the divine … to provide an opportunity for Senators to be drawn closer to their understanding of God…. In order that the divine wisdom might be theirs as they conduct their business for the day.” Palmer’s prayers also contained frequent references to the Christian religion.
The Marsh Court affirmed the constitutionality of precisely “invok[ing] Divine guidance on a public body entrusted with making the laws.” Even considering the heavy preponderance of distinctively Christian prayers, and the uniform presence of a Presbyterian deliverer, the Court described Nebraska’s practice as a “tolerable acknowledgement”—or reflection, one might say—“of beliefs widely held among the people of this country.” Marsh thus approved genuine prayers (“invoke[ing] Divine guidance”) in a manner that reflects the relevant religious beliefs of the political community.
I say “relevant religious beliefs” for a reason: the prayers sanctioned by the Marsh Court were no spiritual Esperanto or religious least common denominator. These prayers affirmed a set of common but scarcely universally held propositions that any legislative prayer would have to affirm or at least presuppose: (1) there is a Supreme Being, who (2) has a continuing interest in human affairs, (3) possesses the power to affect the course of human affairs, (4) is benevolent (for the legislators assembled are obviously seeking some good effect by and through their prayer), and (5) actually listens and responds to people when they pray.
“Praying” for “divine guidance” for public authorities is therefore something that non-believers and even many religious believers cannot conscientiously do. Some of the founding fathers have been described as Deists. Deists affirm the existence of a Creator God, but they deny the existence of Divine Providence. They profess belief in a “clockmaker” God, who set in motion a course of events at the beginning of time that includes human affairs, but who remains forever after aloof from them. Deists of this description would not affirm the efficacy of prayers for God’s guidance in deciding what people should do about ordering earthly matters.
Judge Calebresi wrote in Galloway v. Greece that the Constitution prohibits a town’s endorsement of a “vague theism.” But how could anyone pray to God for guidance in earthly matters without affirming a “vague theism,” comprising, at the very least, the five propositions outlined above? Though he does not admit it, Calebresi’s judgment directly contradicts the March decision.
Calebresi’s complaint about the lack of diversity among Greece prayer-givers is similarly uncomprehending. In fact, Grecian prayer-givers were randomly solicited from area religious congregations. It so happens that all of them between 1999 and 2008 were Christian. Galloway and Stephens lived in or near the town for more than thirty years. Both testified that they were unaware of any non-Christian places of worship in the vicinity. All told, the distribution of prayers in Greece reflected the distribution of potential prayer-givers in Greece.
Calebresi demanded a greater spread. He got it, when in 2008 a Buddhist temple opened up within Greece’s borders. Soon, the Board invited a Buddhist representative to offer a prayer, then two Jews, and later a Wiccan priestess. But this late move to diversify raised more constitutional questions than it answered. Buddhists characteristically do not believe in a Creator God who remains interested in “guiding” or “assisting” human political affairs. No possibility of seeking divine guidance for lawmakers here. “Wicca” is an eclectic blend of beliefs and traditions, with origins and continued influence supplied by witchcraft. The dominant form of belief among Wiccans is pantheistic, and may be most accurately described as a sort of “nature” religion with certain magical elements. Wiccan “prayer” might promote inner peace and a vague sense of harmony with the cosmos. But Wiccans cannot conscientiously appeal to God for guidance in human matters. How could such volunteers actually ask God to guide the legislators at hand? (In the event, the priestess chose farce. She stated that she invoked the Olympian gods, not because anybody believed in them, but because of the town’s name. )
This is essentially what Calebresi required. He criticized Greece for not “explain[ing] that it intended the prayers to solemnize Board meetings rather than to affiliate the town with any particular creed.” He asserted that the town “desire[d] to mark the solemnity of the proceedings with a prayer.”
Not so: Greece desired to pray, as Nebraska’s lawmakers had.
Perhaps all prayers effectively “solemnize” the occasion of their delivery. But that is not the point of praying. Asking God for help is the point of prayer; there are many other ways to solemnize events.
The Marsh Court did not say or imply that the prayers in Nebraska were one tolerable way to “solemnize” the occasion—as if the “prayers” were an alternative to a moment-of-silence, reading Whitman’s Leaves of Grass, contemplating Walden Pond with Thoreau, reading a letter from Iwo Jima, or listening to the Gettysburg Address. Doing any of these things would be edifying, and might help those present to recollect themselves by means of personal reflection. It is just that none would be an edifying prayer.
Calebresi lamented that “most prayer-givers appeared to speak on behalf of the town, rather than on behalf of themselves.” Of course prayer-givers spoke “on behalf of the town”; they were all invited by the town to pray for the town and its leaders, in the leaders’ presence. There is no intelligible way to utter a legislative prayer without linking God, the prayer-giver, and those for whom the prayer is offered in a sort of sacred circle. And it would create rather than resolve a church-state problem if those present—or even just the public officials present—were court-ordered to avoid any appearance of participating in the exercise.
Judge Calebresi would rather have community volunteers speak on their own accounts, but that would no longer be legislative prayer. It would be more like a limited forum for introductory sentiments and reflections. His remedial proposal gives him away here: make sure all those who would like to “deliver an invocation” know that they will be “welcomed, regardless of their religious beliefs or non-beliefs.”
Calebresi also warned prayer-givers to “resist [the] temptation” to “convey their view of religious truth, and thereby run the risk of making others feel like outsiders.” This is the ordinarily regnant “no endorsement of religion over non-religion” norm in full. But why should one expect anything else? As Captain Renault of Casablanca’s police force might reply: “I am shocked, just shocked, to discover that these praying people actually believe it when they petition God!”
Or, as Fourth Circuit Judge Paul Niemeyer correctly said in another legislative prayer case: “Prayer includes the articulation of words addressed to the Divine Being in accordance with the beliefs of the prayer-giver’s religion.” Thus, “Whatever name is spoken, it is spoken by the religious leader in accord with the leader’s religion to call on the Divine Being.”
Gerard V. Bradley is Professor of Law at the University of Notre Dame, and a Senior Fellow of the Witherspoon Institute.