Imagine yourself in the gallery watching the Senate open for business. The day begins with a prayer from the Rev. Adm. Barry Black, a Seventh-Day Adventist pastor and the Senate’s current chaplain. Black, as is his custom, suggests none too delicately that God would like the Senate to get off the dime.
Most of us are not Adventists, but the odds are that, even if you would have preferred not to hear the prayer, you don’t feel your immortal soul, or even your dignity, has been compromised. You’re here to watch the Senate do business, and, for good or ill, this is how they do it.
Now imagine, on the other hand, that you get to the DMV window, and the clerk says, “Will you bow your head in prayer to Jesus Christ?”
What do you do? What if you were told to bow at the Zoning Commission office, or before a job interview or a promotion board? No one is going to put you in jail or fine you if you don’t join in—but wouldn’t you feel you would be better off if you got aboard the Salvation Express?
On November 6, the Supreme Court will need to decide whether a Town Council meeting—which passes ordinances, grants zoning variances, hears employee grievances, and decides on police promotions—is more like the Senate or the Division of Motor Vehicles.
The story of Town of Greece v. Galloway begins in 1999, in the thriving hamlet of Greece, N. (pop. 96,000) just outside Rochester. Until then, the Greece Town Council had opened its monthly meetings with a moment of silence. But that didn’t satisfy newly elected Supervisor John T. Auberger, who wanted prayer, by God. At first he led the prayers himself; then the Council began inviting local clergy to give prayers. Over the 13-year period of Greece’s evangelizing mission, all of those praying but three have been Christian ministers. (The town says it has always been its policy to allow anyone to open the meeting if they asked; but that policy seems to have been secret, and town officials made the calls to clergy, asking them to come and pray.) Many of the clergy giving the invocation asked the audience to bow their heads, called on Jesus Christ, led a group recital of the Lord’s Prayer, or asked the audience to say “Amen.”
The audience was completely free to walk out, look at the ceiling, or stick their fingers in their ears and yell “No one’s listening to you!” That is, they were not subject to being jailed or fined. Whether you’d feel “free” in those circumstances may, in fact, be the central question in the case.
Here’s how lawyers for the Town of Greece put it in their brief: “As understood by the Framers, government ‘established’ religion either by compelling the payment of taxes to support a favored religion or by compelling obedience to the tenets of a particular faith.” Asking people to pray while you ponder their zoning variance thus isn’t a problem—unless you ask for money up front, or tell them to say ten Our Fathers and ask again.
Religious conservatives have been promoting the “coercion” test for nearly a generation. In 1992, they seemed posed for victory. Lee v. Weisman concerned a local high-school graduation ceremony, with a Rabbi invited to give an elaborate invocation asking God’s blessings on the graduates. No one was asked to join in, and there was no reference to any particular denomination of Christianity or Judaism. So confident were the “coercion” advocates that the School Board’s lawyer told the Court that a state government could constitutionally set up an official state religion, as long as it was “purely noncoercive.”
In the Court’s opinion, though, Justice Anthony Kennedy broadened the “coercion” test. The graduates were young, the ceremony was a special day, and public and peer pressure to participate “can be as real as any overt compulsion.” The invocation thus violated the Establishment Clause, he wrote. This angered Justice Antonin Scalia, who wrote that the Clause was on violated by “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”
But Scalia added an important qualification. Public prayer, he wrote, is okay as long as it is not “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).”
There is no such reservation here. The Christian invokers in Greece were determinedly, almost pugnaciously, “sectarian.” In fact, when the plaintiffs in this case first complained, the Council stood by while an invited invoker told God that “they are in the minority, and they are ignorant of the history of our country.”
Thus the Town will, and should, lose--unless the Court holds that the prayers are not directed at the audience, but are instead like Admiral Black’s homilies before the Senate. The Court has upheld “legislative prayer” before meetings of bodies like the Senate or a state legislature. In qualify, the prayers would have to be seen as the Council talking to itself, not the ministers talking to the audience. In this case, that seems like a stretch.
The Court is faced with unappetizing choices in this case. Its caselaw makes clear that state legislative bodies can open with prayer; but Lee v. Weisman suggests that local government can’t put pressure on people to participate, even passively. Even Justice Scalia has said that there can’t be “sectarian” prayers; but the cases also make clear that government can’t review, censor, or prescribe prayers—even to the extent of giving clergy a little brochure on how to make prayers “nonsectarian.”
It will be easier for a camel to pass through the eye of a needle than for the Court to negotiate this dispute without making things worse.
Until 1999, Grecians were at peace, with a “moment of silence” that accommodated believers without pressing infidels to do anything. The aggressive faith of Supervisor Auberger has brought us to this pass ,where anything the Court does could put another crack in the fragile religious peace we have forged since the adoption of the First Amendment in 1791.
In David Lean’s film Lawrence of Arabia, Prince Feisal (played by Alec Guinness) explains to a reporter the difference between him and Major T.E. Lawrence (Peter O’Toole): “With Major Lawrence, mercy is a passion: with me it is merely good manners. You may judge which motive is the more reliable.”
In no area more than this is passion an unreliable guide. If Supervisor Auberger and his cohorts had a shred of manners, we and the Court would not be in this mess.