On Monday, a divided (5-4) Supreme Court handed down a historic(-ally bad) ruling upholding the constitutionality of sectarian prayer at city council meetings. I’ll be explaining why this is bad, but first a little background on the case.
From 1999 to 2007, every city council meeting in the town of Greece, New York was opened with a Christian prayer delivered by Christian clergy. Many of these prayers included sectarian references to Jesus, the Holy Spirit, salvation, and Bible verses.
In 2008, Susan Galloway (Jewish) and Linda Stephens (Atheist) filed a lawsuit arguing that these prayers violated the Establishment Clause of the Constitution. In 2012, the 2nd Circuit Court of Appeals unanimously ruled in favor of Galloway and Stephens, concluding “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”
Unfortunately, it didn’t end there. The town of Greece filed an appeal asking the Supreme Court to hear the case. The Supreme Court consented, which lead to Monday’s ruling. The case was decided by the narrowest of margins, with the majority comprised entirely of Roman Catholic justices, and three of the four dissenters being Jewish.
The main reason provided for the majority’s opinion was that:
To hold that invocations must be nonsectarian would… involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance.
Ok… the obvious answer is to not pray at all in council meetings. Justice Kagan expressed this sentiment in her dissenting opinion:
When a person goes to court, a polling place, or an immigration proceeding – I could go on: to a zoning agency, a parole board hearing, or the DMV – government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans – none of them different from any other for that civic purpose. Why not, then, at a town meeting?
Justice Kennedy’s justification for prayer at council meetings was murky:
Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions.
In other words, “we do all these other unconstitutional things, so what’s the big deal?”
The majority goes on to say that “peer pressure, unpleasant as it may be, is not coercion.” OF COURSE it is – that’s why it’s got the word “pressure” in it. This is an incredibly obvious case of Christian privilege. Thankfully, Justice Kagan called them out on it:
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… 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.
Why It’s Bad
This is a huge blow for religious minorities and those who support church/state separation. Despite what the Christian majority on the Supreme Court says, sectarian prayer at a council meeting gives the unmistakable impression that a city government supports a particular religion.
Imagine a Wiccan contractor bidding on a city construction project. If every council meeting starts with a prayer to Jesus, you better believe that contractor will be checking his religion at the door. To keep from rocking the boat and losing the contract, he’ll keep quiet about his religion, bow his head for the prayer, and probably even say “amen.” He’s damn well not going to “walk out of the room” as Justice Kennedy suggests. In short, this contractor will be coerced into pretending a different (state-endorsed) religion, whereas a competing Christian contractor would not. This is the very definition of “prohibiting the free exercise” of religion.
The decision is bad for another reason. Though it immediately refers to legislative prayer, the Supreme Court’s attitude on this could bolster further Establishment Clause violations such as sectarian religious displays on public property and public funds for religious schools. The conservative Bucket Fund, seems to hope that this will “[start] the work of bringing the entire law of church and state onto a firmer foundation in the words of the Constitution,” and American Family Association’s Bryan Fischer celebrated this as a “monster win” which proves that “we are fighting a winnable war.”
Is There Any Silver Lining?
If I were more cynical, I would highlight this as a win for cities where Christians are the minority. For instance, the Dearborn, Michigan city council may want to start opening meetings with prayers to Allah, and increasingly non-religious big cities may want to start meetings with affirmations of a purely natural world with no need for myths. But since I’m AGAINST codified religious discrimination, I’ll check my schadenfreude and stop short of calling that a win.
No, if there’s one good thing, it’s that at least for now the scope of the decision seems to be limited to this one case. Ayesha Khan, legal director for Americans United for Separation of Church and State, says the ruling stops short of a sweeping ruling which would have further relaxed the definition of a constitutional violation. Even majority Justice Alito indicated that the court would continue to take these issues on a case-by-case basis, expressing concern that “some readers will take these hypotheticals as a warning that this is where today’s decision leads – to a country in which religious minorities are denied the equal benefits of citizenship.”
via Friendly Atheist