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.
Faced with the Marsh precedent, the challengers did not ask the Court to ban the opening prayers altogether. Instead, they quoted Scalia’s dissent and asked that “prayers that are obviously sectarian ... should be prohibited.”
The majority rejected the very idea of “non-sectarianism.” The legislature could not monitor prayer for its sectarian content, Kennedy wrote: “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.” After all, despite what Scalia had written two decades ago, Kennedy wrote, “There is doubt ... that consensus might be reached as to what qualifies as generic or nonsectarian.”
But even with the new green light, local legislative prayer will not become a free-for-all of calls to Jesus, Kennedy continued: “If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion ... [t]hat circumstance would present a different case than the one presently before the Court.”
In other words, legislators need not—indeed cannot—monitor prayers for sectarian content. The courts, however, can monitor all the prayers as a group if someone brings a lawsuit. But here’s a foretaste of how that monitoring might function: Every one of those flaws was present in the prayer program at issue in Town of Greece, and the majority simply insisted that they were not.
The Kennedy opinion was joined by Chief Justice John Roberts, Justice Samuel Alito, and (mostly) by Justices Antonin Scalia and Clarence Thomas. Alito and Justice Clarence Thomas wrote separately—Thomas to urge an even more permissive rule, and Alito to explain that the dissent was not just wrong but really, really wrong.
Justice Elena Kagan, writing for herself and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, emphasized that a religious dissenter who abstains from public prayer becomes “a different kind of citizen,” who “stands at a remove, based solely on religion, from her fellow citizens and her elected representatives.” The dissent did not argue that the town board should not open with prayer; instead, it called for “the recognition that we are a pluralistic people too,” and that “government must take especial care to ensure that the prayers [at meetings] will seek to include, rather than serve to divide.” (Breyer joined the dissent but wrote separately as well to emphasize how important the facts of each case will be.)
Kennedy’s opinion admitted that some prayers will discomfit some dissenting citizens. “Offense, however,” he wrote, “does not equate to coercion.” In response, Kagan directly attacked the idea that mere hypersensitivity is behind the challenge to prayer:
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. A person’s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity—who that person is and how she faces the world .... I would treat more seriously the multiplicity of Americans’ religious commitments, along with the challenge they can pose to the project—the distinctively American project—of creating one from the many, and governing all as united.
Under Monday’s precedent, local governments cannot say anything to their volunteer prayer leaders to make sure offense is not repeated, because that would be enforcing non-sectarianism; but minorities should not worry, because at some point at some point the federal courts will draw the line.
This is, in the end, a case about beliefs. If you believe what the majority just said, I have an old crumbling wall to sell you.