Earlier this month, the Supreme Court affirmed the constitutionality of opening legislative meetings with prayer. That outcome is no surprise; the smart bet has long been that the Court would uphold praying for lawmakers on the strength of its 1983 decision in Marsh v. Chambers. The Court’s five-to-four split is no surprise either, save to the few who thought that Justice Breyer might join the religion-friendly Justices Scalia, Alito, Thomas, Kennedy, and Chief Justice Roberts in the majority.
The surprise—and it is a big one—is that Justice Kennedy’s majority opinion did not stick to the reasoning of the more limited 1983 case. He did not equivocate or dither. Instead, Kennedy authored a bold and almost uniformly lucid opinion that secured a wide constitutional berth for robustly “sectarian” prayers. Kennedy’s opinion is the Court’s best piece of Establishment Clause work in decades—and a happy omen for religious liberty in our country.
Prayer vs. Ceremonial Verbiage
The recent case arose in Greece, New York, located just outside Rochester. For many years, the town council opened its monthly meetings with prayers by community religious leaders who were selected randomly from local congregations. An overwhelming majority of these prayer-givers were Christians, praying as Christians are wont to do: “in the name of Jesus,” “through Our Lord,” to “Our Heavenly Father,” by the “Holy Spirit,” and so on. This proportion was no surprise: the vast majority of Greece’s residents are Christians, as were all of the local religious congregations during the litigated period of time.
This vast preponderance was nonetheless the basis for the lower appellate court’s invalidation of the prayer practice and for the dissent of the four more liberal justices on the high Court. In their view, Greece endorsed Christianity in violation of the First Amendment’s Establishment Clause.
But all of the justices in Greece v. Galloway agreed that they resolved a constitutional dispute concerning sincere invocations of divine blessings and assistance, heartfelt expressions of gratitude for previous blessings bestowed, and recognition of God’s continuing action in the world and everyone’s dependence upon it. All of them agreed that this was a case about prayer.
One might well ask: what is the alternative? Well, the Court has, on other occasions, labeled sacred verbiage “ceremonial deism.” The Pledge’s “Under God” and the Court’s own “God Save this Honorable Court” are examples of language that time and familiarity have—according to the Court—stripped of literal meaning and thus blanched of religious content. These expressions linger usefully because, in the Greece Court’s phrases, they “lend gravity to the occasion” and “reflect values long part of the Nation’s heritage.”
At one point in the Greece decision, Kennedy seems to equate legislative prayer with these phrases. The “reasonable observer” is, according to Kennedy, “presumed [to be] 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”—as if the “prayer” only functioned to solemnize the occasion, merely acknowledging ambient private sentiment.
The great bulk of Greece’s descriptions of the town’s opening acts, however, leaves no doubt that the Court acted upon them as real prayers, “invo[cations of] divine guidance in town affairs.”
Praying the Truth
The Court preserved these prayers from practically all constitutional attacks, save when the public prayer organizers act in bad faith. “So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.” “The content of the prayers is no concern,” according to the majority opinion, so long as there is no indication that “the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” An isolated “disparagement” will not suffice: “Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation” (emphases added).
What counts as “proselytizing” or “disparaging”? We know one thing that does not count, and it is a critical bit of information. In an opinion authored by former Yale Law Dean Guido Calebresi, the lower appellate court went so far as to warn Greece prayer-givers to “resist [the] temptation” to “convey their view of religious truth, and thereby run the risk of making others feel like outsiders.”
The alarming suggestion is that the only way to display respect and tolerance for others’ beliefs is for the prayer-giver to keep his real beliefs to himself or to offer them as one opinion among many others. But every religious tradition consists of a set of claims defining a particular view of reality, that is, of truth. Inviting religious believers into the public square, asking them to “pray,” and then telling them to avoid suggesting that they are speaking the truth from their hearts as they understand that truth to be, only promotes an artificial dialogue, a phony pluralism, and a platitudinous civil religion.
Greece v. Galloway could not have more resoundingly rejected this whole notion of self-censorship. The majority declared, “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 purpose of the Establishment Clause is not to protect some empty civic ritual or politico-theological civil religion. Prayer-givers may speak from the heart (“conscience”) in sectarian terms. They may speak what they believe to be true.
Civil Society, Exclusion, and a “Mosaic” of Beliefs
The Greece dissenters, led by Justice Elena Kagan, called for a more “inclusive” prayer regimen than the one that the town actually practiced. Given the religious demographic in Greece, though, the pathways to a more gorgeous “mosaic” (another key word in the dissent) were quite limited.
The dissenters’ elusive aspiration attracted Justice Alito’s brief concurring opinion. The dissent, he said, “really consists of two very different but intertwined opinions. One is quite narrow” and “the other is sweeping.” Alito rightly criticized the two “narrow” pathways identified by Kagan: either tell prayer-givers to speak in “non-sectarian terms” or “invit[e] clergy of many faiths.” The first, Alito rightly said, was too close to government scripting (and would, in my judgment, shift the whole practice toward a civil religion). The second could only “pressure towns to forswear altogether” opening prayers.
The “logic” of the dissent, Alito argued, suggested that prayer was “never permissible prior to meetings of local government legislative bodies.” This view of the dissent’s “sweep” is correct, but Justice Alito did not quite get to the bottom of why. He did not see exactly what assumptions the dissenters held that made their affirmation of Marsh hollow.
Here it is, from the Greece dissent:
A person’s response to the doctrine, language, and imagery contained in these invocations reveals a core aspect of identity – who that person is and how she faces the world. And the responses of different individuals, in Greece, and across this country, of course vary. Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans. They express beliefs that are fundamental to some, foreign to others – and because that is so they carry the ever-present potential to both exclude and divide.
Here is ground zero of the dissent, and of Establishment Clause doctrine up to Greece: government must not associate itself with religion if doing so causes any “reasonable” observer to feel like an outsider.
Here, too, is the incompatibility of the dissent and any legislative prayer practice. For here the constitutional subject is the individual “identity” of “all Americans.” Here the trumping value is the “potential” to “exclude” any one of them. No prayer could ever complete this constitutional gauntlet.
One could, perhaps, imagine a town meeting where the prayers offered resonated with the “identity” of every one present. (For the record, I cannot.) But even that tableau of perfect harmony would be unconstitutional, because the relevant population extends beyond those physically present to all those who reside in the relevant jurisdiction and, potentially, to “all Americans.” The “potential” to “exclude” is truly “ever-present.”
A Partnership between Constitutional Doctrine and Historical Practice
The plaintiffs in Greece were Susan Galloway and Linda Stephens, town residents who objected not only that the prayers “violated their religious or philosophical views,” but also that they were “offensive,” “intolerant,” and an affront to a “diverse community.” These women spoke fluently the Establishment Clause jargon shared by the dissenting justices.
Justice Kennedy gave them no quarter: “Offense . . . does not amount to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.” The “offense” denigrated in Greece is very close to the feelings of “outsider” status that have powered Establishment Clause doctrine since around 1980. The religion-sensitive soul who has starred in the Court’s Establishment Clause productions since then may now be seeking other roles. We should pray so.
The Greece Court did not expressly go that far. But the majority did engage—and alter—Establishment Clause doctrine. In 1983, the Marsh Court’s decision was widely thought to have put aside the usual constitutional tests for a single grandfathered exception. But the Court cautioned in Greece, “Marsh must not be understood as permitting a practice that would amount to an Establishment Clause violation if not for its historical foundation.” On the contrary, “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.”
Greece seems to have inaugurated—or renewed, with a fresh commitment—a partnership between constitutional doctrine and historical practice.
It is too early to say where this alliance will take the law. But it could preserve some important practices that, although presently lawful, would be vulnerable to any Supreme Court majority that shares the Establishment Clause interpretation of the Greece dissenters. Among these potential targets are tax exemptions for churches and other religious institutions, conscientious exemption from general laws, and a host of public-religious collaborations in projects that serve the common good (in health, education, welfare, and so on). The American tradition of such collaboration dates back to the founding, when most of what we now think of as “public” services were supplied by churches, often at public expense.
Some other practices that are now constitutionally endangered, such as prayers at public school occasions and the display of the Ten Commandments in public places, could also be buttressed by Greece.
The Nature of Coercion and No Sect-Preference
Justices Thomas and Scalia joined all but one portion of Kennedy’s opinion. Their disagreement turned on the nature of the “coercion” that the Establishment Clause forbids. They maintained that only legal coercion—the enforcement of orthodoxy “by force of law and threat of penalty”—is prohibited. The other three justices would ban also more subtle psychological pressure to conform, as well as the threat of social ostracism. These sorts of “coercion” have played an important role in cases of religious observance in public school classrooms.
This debate is important to the course of contemporary Establishment Clause law, although I am not sure which view is the better one. Yet I think that the debate obscures the original understanding of that clause.
For the Framers, “coercion” was often a mark of an establishment, but it was not an essential feature of it. The defining feature of an “establishment” was government affirmation of the rites or doctrines of a particular church as true. The core meaning of non-establishment could be rendered in shorthand as “no sect-preference”: the government must remain neutral on those matters—finer points of theological doctrine, modes of worship, internal discipline, church polity—that distinguished the many churches and groups from one another.
The truths of natural religion—that there is one God, Creator and Governor of the Universe with a providential plan for all creation—were an entirely separate matter. In our constitutional tradition, public authority not only could but should affirm these propositions. Our forefathers routinely did so, starting with the Declaration of Independence. And none of this necessarily involved coercing anybody.
We can see, almost from the beginning of our nation’s existence, that the federal government labored under a restrictive non-establishment norm about religion. We can see this norm when the national government considered Indian treaty provisions about missionaries; mail delivery on Sundays; congressional chaplains; immigration restrictions when they affected ministerial imports; and federal outlays to religious groups doing what we would call charitable works.
The most important part of the Greece decision is that it upheld legislative prayer while rejecting civil religion. The prayers it upheld originated outside the government; they were citizen prayers for lawmakers and they were recited in the vernacular. Indeed, Greece v. Galloway could not have rejected more resoundingly the whole notion of government control of the praying citizenry. The purpose of the Establishment Clause is not to protect some empty civic ritual or politico-theological civil religion. Prayer-givers may speak from the heart in sectarian terms. They may speak what they believe to be true.