With the Supreme Court's Help, Religion Creeps Toward the State

The 5-4 decision in Town of Greece v. Galloway shows how far the ground has shifted under the Establishment Clause in the last 30 years.
James Lawler Duggan/Reuters

Americans like to debate the “wall of separation” between church and state. Conservatives denounce it as an invention of that sinister Francophile Thomas Jefferson. Liberals point out its roots in American religion going back to 1644. 

But there is no wall. There may never have been one, and in any case there hasn’t been one for some time. There is merely an ill-defined grassy verge between the domain of majority religion on the one hand and that of dissent on the other. The new growth on the government-sponsored-religion side is distinctly invasive—the habitat of the majority moves relentlessly forward, while the sphere of solitary conscience retreats.

Majority religion took another small step forward Monday, when the Court decided, 5-4, that the town of Greece, New York, did not violate the Establishment Clause when it chose to begin its town-board meetings with explicitly Christian prayers, in which local clergy asked citizens to bow their heads, acknowledge “the saving sacrifice of Jesus,” and signify assent by saying “amen.”

The result will dismay those who believe, like Justice Elena Kagan, that “when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans.” Kagan believes that so strongly that she repeated the idea no fewer than four times in a spirited dissent from the majority opinion, which was written by Justice Anthony Kennedy.

The majority decided that prayers to Jesus, invitations to bring Him into our lives, and mentions of His death and resurrection are pretty much fine, as long as they don’t happen every single month. Look how far the grassy verge has moved: Only two decades ago, the extreme conservative position, enunciated by Justice Antonin Scalia in a dissent, was that the Establishment Clause actually rules “out of order government-sponsored endorsement of religion ... where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”

Scalia’s “sectarian” language, by today’s standards, seems positively quaint.

Let’s put the cases in context. The Court found that the prayers in Greece were what’s called “legislative prayer.” That means prayer held by legislative bodies like Congress or a state legislature, directed at the body’s own members, to solemnize the opening of a business day. That kind of prayer was approved by a 1983 case, Marsh v. Chambers. The Court in Marsh relied on history to reject a challenge to prayers in front of Nebraska’s legislature, “where ... 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.”

Marsh is good law, and no party to Town of Greece was foolhardy enough to ask the Court to step back into the “legislative prayer” thicket. But there are crucial differences between the Nebraska chaplain’s invocations and those at the town-board meetings in Greece. To begin with, onlookers in Nebraska were in a gallery, while the chaplain addressed the members of the legislature. No citizen was called on to do business with the legislature during its session. And the chaplain, after first referring to Jesus in his early prayers, stopped the practice when a Jewish member quietly objected.

In Greece, however, citizens come to the town board not only to watch but to supplicate such favors as building permits and zoning changes. The “chaplain of the month” faces the audience, not the members, and often aggressively asks attendees to bow their heads and pray, and as noted, the prayers are rife with theological claims not only controversial to non-Christians but troubling for many of the faithful. The town board, which has a town employee solicit a different member of the clergy every month, has designated only four non-Christians to pray in 15 years of official prayer. (Those four were picked just after litigation over the prayers began, and the nod has gone to Christians for the six years since.) In Greece, moreover, once the lawsuit was brought against prayers, at least one volunteer chaplain responded by tongue-lashing the dissenters in his official prayer.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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