The First Amendment’s Establishment Clause prohibits the government from engaging in any practice “respecting an establishment of religion.” So is it constitutional for the town board of Greece, New York, to open its monthly meetings with a prayer given by clergy selected from congregations in the town—all of which are Christian? Yes, the Supreme Court ruled Monday in a 5-4 decision in Town of Greece, New York, v. Galloway.
In the past, the court has held that a legislative body does not violate the Establishment Clause if it begins its proceedings with a prayer, so long as “the prayer opportunity” is not “exploited to proselytize or advance any one...faith or belief.” The town of Greece clearly violated that essential condition. Indeed, from the time the town established its prayer practice in 1999 until the litigation commenced, a period in which the town board held approximately 100 meetings, every chaplain invited to deliver the opening prayer represented the Christian clergy.
Moreover, the vast majority of their prayers were explicitly sectarian in nature, routinely invoking “Jesus,” “Christ,” “Your Son,” “the Holy Spirit,” the “resurrection and ascension of the Savior Jesus Christ,“ “the celebration of Holy Week,” “the saving sacrifice of Jesus on the Cross,” and “the very heart and center of our Christian faith.” In short, the tenor of the prayers typically assumed that everyone in the room—including the individual citizens who were there to plead their causes to the town board—was Christian. (After the litigation was filed, the town briefly reached out to invite a few non-Christians to deliver the prayer, but that shift was short-lived, and the town soon resumed its practice of inviting only chaplains from Protestant and Catholic churches.)
But John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, the five justices in the majority, held that 15 years of almost exclusively sectarian Christian prayer did not violate the Establishment Clause because the town board graciously invited representatives from all of the town’s congregations. That all of those congregations just happen to be either Catholic or Protestant, the majority said, is not the board’s responsibility: “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...promote ‘a diversity of views.’” This was especially true, the majority observed, because “the town at no point excluded or denied an opportunity to a would-be prayer giver” who was not Christian. That approximately 99 percent of those who offered the opening prayers did so from a Christian perspective, the majority concluded, was not the result of any discrimination on the part of the board. Hence, there was no violation of the First Amendment.
In a powerful dissenting opinion, Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, dissected the majority’s reasoning. In Kagan’s view, the town of Greece’s prayer practice clearly violated the Constitution’s fundamental commitment to the “norm of religious equality.” As Kagan noted, the town “never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions.”
Quoting a well-settled, 25-year-old precedent, Kagan invoked a central principle of Establishment Clause doctrine: “Whatever else the Establishment Clause may mean...it means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions).” That principle of religious neutrality, Kagan observed, “is not a product of 21st century ‘political correctness,’” but was central to those who framed the First Amendment, including such figures as George Washington, Thomas Jefferson, and James Madison.
In Kagan’s view, the town of Greece’s prayer policy clearly violated that fundamental principle. Although recognizing that the use of a prayer to open a government proceeding does not in itself violate the Constitution, Kagan insisted that, in order to comply with the principle of religious neutrality, such prayers must be either non-sectarian in nature or, if they are sectarian, must be delivered by clergy of different faiths. As Kagan noted, these are easy solutions to the problem of impermissible sectarianism, and Congress and the vast majority of government agencies that invite prayer routinely follow them.
What the town of Greece could not do, Kagan reasoned, consistent with the Establishment Clause, is “what it did: infuse a participatory government body with one (and only one) faith.” Even if all the congregations within the town’s borders are Christian, Kagan observed, it would have been easy for the town board to have publicized its willingness to welcome opening prayers by representatives of other religions, to have invited non-Christian clergy from neighboring towns to deliver the prayers, or to have encouraged local chaplains to reach out to members of other faiths to deliver the prayers. The town’s complete failure to make any effort to do any of these things, and to respect the central principle of neutrality, Kagan concluded, flatly violated the First Amendment.
Kagan emphasized the fundamental dissonance between inviting citizens to come before the town board to present their requests for new government policies, while at the same time making clear to those citizens who are Jewish, Muslim, Hindu, or other faiths that they live in a Christian town that regards them as outsiders and second-class citizens. As Kagan noted, “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” because of the message it conveys “to Christians and non-Christians alike.”
The majority’s opinion in this case calls to mind the “controversy” over President Obama’s observation some years back that in selecting nominees to the Supreme Court he would seek individuals who, among other qualities, understand “how our laws affect the daily realities of people’s lives,” because that “quality of empathy, of understanding” is “an essential ingredient for arriving at just decisions.” In Monday’s decision, the court’s five conservative justices, unlike the four dissenters, showed no “empathy,” no “understanding,” of the ways in which the Christian-dominated prayers of the town of Greece might affect those who do not share that particular religious faith.
But that should not surprise us. These same five justices, with the notable and important exception of Justice Kennedy in the realm of gay rights, consistently show no understanding or concern for the interests of racial minorities, women, political dissenters, or religious minorities. They reserve their empathy for gun owners, corporations, billionaires, and those who oppose efforts to redress past discrimination. It seems a bit backward, doesn’t it?