Monday, May 5, 2014

Prayer in Government

     Tradition, among a few other principles such as the definition of coercion, and lack of diversity or willingness among regional religious institutions, was the basis for the Supreme Court’s ruling on Monday to uphold prayer at municipal meetings.  In Town of Greece v Galloway, respondents challenged their local town board’s practice of reciting a prayer at the beginning of town meetings based on the First Amendment’s establishment clause (“Congress shall make no law respecting an establishment of religion”) for favoring a particular religion (Christianity) over others.  To be clear, as Justice Kennedy mentioned in his majority opinion for the Court, respondents, "did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumenical' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief." 

     The majority, in a 5-4 ruling, decided that the town’s practice of prayerfully opening town meetings did not violate the establishment clause given "prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation’s heritage and tradition" and "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 achieve religious balancing."  The Court relied on a case from 1983 called Marsh v Chambers, which upheld prayer in the Nebraska state legislature based on this same tradition principle. Additionally, in what I refer to as excessive judicial overreach, for which the Court restrained from, the Court believes the "'content of the prayer is not of concern to judges'" and "The law and the Court could not draw this line [prayers must only be addressed to a generic "God"] for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian."  In essence, Kennedy asserted that this would force greater involvement of government and courts in religion beyond the town of Greece’s current practices.  

     Two key issues worth pointing out in the Court’s decision are federalism, and an acceptance of religious narrative.  In a separate opinion written by Justice Thomas and joined by Justice Scalia, Thomas points out that the establishment clause holds no bearing to the states and was only enacted to apply to Congress and the federal government thus creating a federalism issue.  According to Justice Thomas, “That choice of language—‘Congress shall make no law’—effectively denied Congress any power to regulate state establishments.” Justice Thomas follows this statement by writing that in 1789, six states had established religions.  He then paints a historical picture of the colonial states and their eventual abolition of such establishments with Massachusetts’s full abolition in 1833.  “That lack of consensus,” Thomas wrote, “suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States.”

     Justice Thomas uses the establishment clause coupled with the foggy history of  the Civil War amendments (the Fourteenth Amendment’s language as applicable to individuals) as the basis for his agreement that at the founding of the United States, “attendance at the established church was mandatory, and taxes were levied to generate church revenue,” suggesting that mandatory participation is coercion whereas,  “‘[p]eer pressure, unpleasant as it may be, is not coercion,’” when applied to Town of Greece.  The issue of coercion in Town of Greece is separate from Marsh, which only involved the state legislative body.  The town of Greece’s prayer reading was done in concert with citizen participation and some who did not participate may have felt compelled to do so as their requests that they were bringing in front of the town board could have been negatively construed for their lack of participation in opening prayer service.  However, the majority noted that there is “Nothing in the record which indicates that town leaders' allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined.”  Lyle Denniston from SCOTUSblog wrote on the coercion issue, “The Court’s majority was divided in the case, but only on how ‘coercion’ is to be defined in a constitutional sense.  Three Justices said that test is satisfied if a town’s governing body ordered the public to join in prayer, criticized ‘dissidents’ who did not share the prayer’s beliefs, or indicated that official action would be or was influenced by whether someone did or did not take part in the prayer exercise,” (for more on the coercion issue, read Lyle’s post.)
 
     A second issue worth pointing out - an acceptance of religious narrative - comes from a brief statement made by Justice Kennedy in his majority opinion.  Kennedy stated, “Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”

     Kennedy is making the broad assumption that any form of prayer should or could be accepted because those who are religious hold some form of reverence toward the divinity of their God or reverence toward divinity in general.  This sweeping assumption is sure to upset certain religious groups as Kennedy lumps all religions together.  Kennedy is also poised to anger atheists who do not believe in a divine being.  On its face, Kennedy’s assumption fails to fall in line with the rest of his opinion in holding that while prayer is not unconstitutional, prayer in the context of government meetings must adhere to a variety of religions and beliefs.  In fact, as Justice Kennedy wrote in his opinion, the town of Greece “maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation.” 

      Based on the oral arguments, the outcome of this decision was not surprising, which is rare given how difficult it can be to predict cases based on the oral arguments.  The precedent established in Marsh is very arduous to overcome especially given the conservative majority on the Court and how First Amendment friendly the Roberts Court has been.

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