by Lela Mayfield
May 9, 2014
FRC president Tony Perkins on ‘The Kelly File’ discussing the recent controversy between HGTV and the Benham brothers.
FRC president Tony Perkins on ‘The Kelly File’ discussing the recent controversy between HGTV and the Benham brothers.
That was the essence of the rhetorical question posed by attorney Noel Francisco, counsel for the D.C. Archdiocese, to the 3-judge panel hearing oral arguments yesterday at the U.S. Court of Appeals for the D.C. Circuit in the consolidated cases of Priests for Life v. Sebelius and Archdiocese of Washington, D.C. v. Sebelius. The plaintiff organizations in these cases object on religious grounds to being forced by law to provide coverage to certain contraceptives — contraceptives that would otherwise be required under the Affordable Care Act (ACA) and associated regulations. The organizations are challenging the government’s requirement that they “certify” they have objections to these contraceptives by signing a form, thus entitling them to an “accommodation” from the law’s scheme under which employers must ensure their insurers provide ACA-compliant coverage. The signed form then triggers government coverage of such contraceptives for the employees of the objecting organizations.
In the organizations’ view, however, this scheme forcing them to play a part in the provision of such contraceptives compels them by law to directly violate Catholic Church teaching by making them complicit in the moral wrong of abortion, and thus constitutes a “substantial burden” on their religious practice. This injury led them to bring claims under the Religious Freedom Restoration Act, under which the government can only “substantially burden a person’s exercise of religion” when its regulation “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The substantial burden still exists even if all the organizations had to do was sign a form certifying they had such objections. It was not the act of picking up the pen and signing the paper that constituted a substantial burden, Mr. Francisco told the judges, but rather the crushing weight of conscience accompanying such an action which violated the very core of their being. It was not the relative ease or difficulty of a specific act which led to the burden, but rather the crushing moral and spiritual compulsion of knowing one is complicit in a moral wrong with the exercise of that one, small, physical act.
Enter Mr. Francisco’s question from my title here. Just like his clients, who feel compelled to violate beliefs going to the core of who they are even by the small act of signing a piece of paper, a Jewish business owner who believes his religion demands he rest on the Sabbath is compelled to violate his conscience when forced to work on Saturday by the small, bur significant, physical act of flipping on the light switch at his business. He is not substantially burdened merely by the physical act of flipping on the switch, but rather by the heavy weight of conscience telling him he is violating all he lives for once he accomplishes that one little flick of his finger.
The news out of Nigeria is horrifying: nearly 300 girls abducted, raped, and “on the block” for sale as slaves, and the mass murder of more than 300 people in a village in the northeastern part of the country.
“Boko Haram” is an Islamist terrorist group that, over the past several years, has murdered thousands, burned hundreds of churches, and sought to destroy Christianity in northern Nigeria. FRC was one of several groups last year that called on the U.S. State Department to designate the Boko Haram as the Islamist terrorist group it is, after years of the Obama Administration’s resistance to doing so.
Although the Obama Administration has been late in recognizing the severity of Boko Haram’s threat, FRC has partnered with our friends in the Jubilee Campaign, the Institute on Religion and Democracy, the Christian Association of Nigerian-Americans, the American Center for Law and Justice, and other groups to encourage awareness of and prayer regarding this murderous organization. We have featured Nigerian human rights attorney and Christian activist Emmanuel Ogebe and several of his colleagues here at FRC, and FRC President Tony Perkins hosted Emmanuel on his November 2012 webcast on international Christian persecution.
FRC joins other Christian organizations and churches in standing with the persecuted church around the world. Persecution of people who claim the Name of Christ is occurring on a worldwide and intensifying scale, and we urge all believers to work and pray for those in prison or under threat for the sake of Jesus.
And we work at home for what we demand abroad: Religious liberty. For example, earlier this week the Supreme Court ruled in favor of public prayer before governmental gatherings, and FRC played a role in this important decision with our amicus brief signed by 49 Members of Congress. From maintaining religious liberty in the military to protecting and advancing our “first freedom” in every facet of American life through legal and political action, FRC is vigorously championing the religious liberty for which our forebears fought and died.
James Madison called religious liberty “the luster of our country.” FRC is committed to keeping that luster glowing ever brighter for ourselves and our children. Learn more about how you can join us by clicking here.
Mere days ago, the Rialto Unified School District was defending an eighth-grade writing assignment that asked students to debate whether the Holocaust was merely a political scheme created to influence public emotion and gain.
California is a “Common Core State,” so it follows that the assignment was part of the newly Core-aligned curriculum issued to teachers in Rialto Unified classrooms. The school board so affirmed. According to school board member Joe Martinez, the Common Core Standards “emphasize critical thinking in students, which is what the assignment is intended to teach.”[i] School district spokeswoman Syeda Jafri added that the assignment was simply designed to engage the students in just such a process.
A portion of the contested middle school assignment reads:
“When tragic events occur in history, there is often debate about their actual existence…For example, some people claim the Holocaust is not an actual historical event, but instead is a propaganda tool that was used for political and monetary gain.”[ii]
This subversive assignment was distributed to a portion of the 26,000 students in the San Bernardino County school district until a correspondent from the Los Angeles chapter of the Anti-Defamation League raised the flag on what might otherwise have been the quiet and tragic indoctrination of fertile minds on a myth that’s been fully debunked, and by using inferior textual material from http://About.com, and http://biblebelievers.org.au/holohoax.htm, no less. Is this the elevation of English Language Arts education through the analysis of “complex” or credible texts that the Standards promised to deliver? Perhaps future Core-aligned textual sources will include http://Yelp.com and http://MySpace.com.
Notably, none of the parents whose children received the assignment made complaints themselves, perhaps due to their ignorance of it. Unlikely? New York parents and teachers took to protesting Core exams after it was revealed that the parents were not allowed to see the tests, the teachers were not allowed to review the graded tests, and the tests themselves were riddled with ambiguous questions.[iii] The Common Core Initiative has been met with widespread criticism, but its lack of transparency in particular continues to astound the populous. As the Standards are instituted state-by-state, with full implementation anticipated by 2015, the interpretation of Common Core’s goal to “broaden worldviews” appears to be making its calamitous entrance.
Under the glaring spotlight of public criticism, interim Superintendent Mohammad Z. Islam is now set to talk with administrators (its “CORE team”) to “assure that any references to the holocaust ‘not occurring’ will be stricken on any current or future Argumentative Research assignments.”[iv]
Common Core supporters have claimed that despite the Standards’ uniformity and a copyright held jointly by the NGA and the CCSSO (preventing an opportunity for even modest modification of the Standards), that there yet exists a forum for ground-level creativity. Proponents allege that teachers are indeed provided with a blank canvas onto which they might paint lessons adhering to the grand, inflexible agenda of a bureaucratic regime. Perhaps this creativity has debuted first in the arena of historical accuracy.
Perhaps we have reason to shudder thinking of what comes next.
Activists use a number of arguments in support of the homosexual political agenda (that is, the push for things like a redefinition of marriage to include homosexual couples, or the inclusion of “sexual orientation” as a protected category in civil rights laws). One of the more ridiculous arguments is the claim that such measures would actually improve the economy of a state.
I was in Indiana earlier this year when that state’s legislature was debating a state constitutional amendment, like those already adopted in thirty other states, to define marriage as the union of one man and one woman. Homosexual activists (and their fellow travelers in some large corporations) asserted that preserving the existing definition of marriage would make it hard to recruit employees. (Legislators ended up trying to have it both ways — passing an amendment but watering it down in a way that prevented it from going to voters for approval this year.)
Then just last week, a group calling itself “Business Leaders for Michigan” endorsed a statewide homosexual rights bill, declaring as part of its “Michigan Turnaround Plan” that the state should “prohibit discrimination based on sexual orientation for employment just like we do for race, color, religion, sex, national origin or disability,” in order to “make Michigan an aspirational destination by being a welcoming place to all.”
Fortunately, these claims readily lend themselves to empirical evaluation. The website of Business Leaders for Michigan says right at the top that the group is “dedicated to making Michigan a ‘Top Ten’ state for jobs, personal income and a healthy economy.” When interviewed on a local NPR station, Doug Rothwell, the group’s President and CEO, added another goal, declaring, “We want to make sure that we can grow our population. Population growth strongly correlates to economic growth.”
So, you want to be a “Top Ten” state in “jobs,” “personal income,” and “population growth?” Well, it’s easy enough to find data on which states are currently in the “Top Ten” in those areas. Then we can see if there is a correlation between that status and the presence of homosexual rights laws or same-sex “marriage” (or actions to prevent it).
In the following lists, a state which prohibits employment discrimination on the basis of sexual orientation (as is being proposed in Michigan) is marked with an asterisk (*). A state which issues civil marriage licenses to same-sex couples is in italics. A state whose voters have amended their state constitution to protect the definition of marriage as the union of one man and one woman, on the other hand (as is being proposed in Indiana) appears in bold.
Here is a list of the “10 States With [the] Biggest Rate of Job Growth in 2013,” as projected by Kiplinger in March of 2013:
4. South Carolina
9. North Carolina
Here is a list of the “Top 10 fastest-growing states” in population, as compiled by CBS MoneyWatch on January 18, 2014:
1. North Dakota
6. South Dakota
10. South Carolina
Finally, here is a list of the top ten states in personal income growth from 2012 to 2013, as reported by the Department of Commerce on March 25, 2014:
1. North Dakota
Nationwide, there are 21 states (42% of the fifty states) which treat “sexual orientation” as a protected category in civil rights laws. Among the fastest growing states in job growth, only three (30%) have such laws; among the fastest growing in population, only three (30% have such laws); and among the fastest growing in personal income, only four (40%) have such laws. Combining these lists, 17 states appear at least once; of these, only six (35%) have protected “sexual orientation.” There is simply no strong correlation between the existence of such laws and economic growth — if anything, the fast-growing states are slightly less likely to have embraced special employment protections for homosexuals.
On the marriage issue, the results are more clear-cut — and show the opposite of what the homosexual activists claim. Nationwide, there are 31 states (62% of the fifty states) where voters have amended their state constitutions to prevent the redefinition of marriage. In all but one of those, the amendment fixed the definition of marriage as the union of one man and one woman. (In Hawaii, the amendment reserved to the legislature the power to define marriage, taking the issue out of the hands of judges, but the legislature recently voted to allow “marriages” of same-sex couples.) There are 17 states (34%) that have redefined “marriage” to authorize the issuance of civil marriage licenses to same-sex couples.
But when it comes to the top states in job growth, all ten are states where voters adopted marriage amendments of some type; in only one (10%) are marriage licenses issued to homosexual couples (see note on Hawaii above). Among the top states in population growth, nine (90%) have marriage amendments, while only one (Washington) has redefined marriage. Finally, among the top states in personal income growth, only two (Washington and Iowa) allow same-sex “marriages,” while the other eight (80%) all have marriage amendments. (Iowa never adopted a marriage amendment, but its voters did remove from office three of the state Supreme Court justices who redefined marriage in a court decision). In total only three of the seventeen states on any of these lists (18%) has same-sex “marriage,” while voters in fifteen (88%) took some action to prevent the redefining of marriage. If anything, there appears to be a fairly significant correlation between economic growth and the defense of the natural, one-man-one-woman definition of marriage — not the abandonment of that definition.
It’s time to drop the nonsense about the homosexual agenda promoting economic growth once and for all.
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This week the Supreme Court, which too often strikes out on behalf of faith, family, and freedom, hit a home run for religious liberty.
In its ruling in Town of Greece v. Galloway, a 5-4 majority upheld the constitutionality of legislative prayer and affirmed the long-held right of Americans to pray in the public square. In January, FRC submitted an amicus brief on behalf of 49 Members of Congress supporting Alliance Defending Freedom’s petition in this case.
Writing for the majority, Justice Anthony Kennedy said, “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.”
Amen! A victory for the Constitution, liberty, and the traditions of millions of ordinary Americans: Not bad. Let’s pray that all of our courts will remember that our “first freedom,” religious liberty, is something to be cherished and advanced if our country is to remain a beacon of hope for all mankind.
Senior Vice President
Family Research Council
P.S. Marijuana use and legalization are increasingly significant issues in our country. Download FRC’s new publication, “The Effects of Marijuana,” to learn more about the dangers of the “drug culture.”
Human Dignity and the Sanctity of Life
Euthanasia/End of Life Issues
Stem Cells and Biotechnology
Marriage & Family
Homosexuality and Same-Sex “Marriage”
Religion in Public Life
International Religious Liberty
Other important articles
Sylvia Burwell is testifying this morning before the Senate Health, Education, Labor and Pensions (HELP) Committee, the first stop in her confirmation process to become the next secretary of the U.S. Department of Health and Human Services, to replace retiring HHS Secretary Kathleen Sebelius. Unfortunately, a new face for the Affordable Care Act or “Obamacare” will not re-write this law’s troubling past, nor its rocky future.
President Obama touted this law as a new frontier in healthcare choice, affordability and flexibility. HHS writes, “The Affordable Care Act puts consumers back in charge of their health care. Under the law, a new ‘Patient’s Bill of Rights’ gives the American people the stability and flexibility they need to make informed choices about their health.”
Choice in healthcare under Obamacare is only a mirage, however – a mere talking point, especially when it comes to whether abortion is included in a particular healthcare plan on the exchanges. Individuals who want to be informed about whether a particular healthcare plan covers elective abortion are not given this information at all under this law. This troubles Americans across the political spectrum.
Indeed, Obamacare contains an “abortion secrecy clause” in Section 1303(b)(3) which prohibits individuals from finding out whether a specific plan on the healthcare exchange covers elective abortion until before enrollment and only allows information on abortion at the time of enrollment in the summary of benefits documents. Additionally, the amount of the separate “abortion surcharge” that enrollees must pay as part of these plans is also not disclosed in the monthly premium. Essentially, you have to buy a plan before you can find out what is in it, and you may never find out how much the abortion coverage for which you are paying costs you each month. This is hardly surprising coming from a law that then-Speaker of the House Nancy Pelosi declared we needed to pass before we could find out what was in it.
American consumers are out of luck whether they are looking for a plan that includes abortion coverage or for a plan that excludes abortion.
Millions of Americans received their infamous healthcare cancellation notice in the mail last fall informing them that their healthcare plan, which they liked and could afford, would be cancelled and made illegal due to Obamacare.
Among those Americans was Barth Bracy, a resident of Connecticut. Bracy, needing to purchase healthcare for himself and his family, looked at plans available on his state exchange to satisfy the law’s individual mandate. Like many Americans, Bracy has religious and moral objections to paying for other people’s abortions and in order to qualify for a healthcare subsidy, he has to purchase a plan on the Connecticut state exchange. Due to the abortion secrecy clause however, he was unable to find out what plans did and did not cover abortion on Connecticut’s state exchange. Later he found that every plan in Connecticut’s exchange covered abortion – a fact the Guttmacher Institute confirmed. This is in clear violation of federal law, which requires that for Multi-State plans run by the government in exchanges, at least one excludes abortion coverage.
For Connecticut residents like Bracy, there is no healthcare choice under Obamacare. Bracy can either violate his conscience and purchase a healthcare plan that includes abortion coverage on the state exchange when his current plan expires, or be fined by the IRS for non-compliance with the individual mandate and forgo healthcare coverage for his family, or give up the subsidy and purchase a more expensive plan off the exchange in order to avoid violating his conscience. Bracy, represented by Alliance Defending Freedom (ADF), has filed suit in federal court (Bracy v. Sebelius) is alleging violations of the federal and state Religious Freedom Restoration Acts, the Free Exercise Clause, and his right to receive information under the Free Speech Clause.
Americans should be able to clearly identify what healthcare plans do and do not cover. Abortion coverage in healthcare plans should be as identifiable as the plans’ deductible, co-pay and other covered procedures. Americans should not have to pay an abortion surcharge if their plan does cover abortion.
Burwell will have a tough task ahead of her in her confirmation hearing. She not only will have to defend the trillion-dollar price tag of this law but also its blatant violation of the separation of powers by the administration, which has delayed key provisions of the law over 30 times, the law’s violation of the principle of the long-standing Hyde Amendment, the destruction of the 40-hour work-week in America, and why the Obama administration refuses to provide even the most basic transparency when it comes to abortion coverage in healthcare plans.
Burwell must answer why Obamacare is denying choice to millions of Americans as a result of the abortion secrecy clause.
Grocery stores don’t hide nutrition labels on food packages. Car dealerships don’t deny potential customers the opportunity to test-drive a vehicle. Similarly, Americans should not be kept in the dark about what healthcare plans do and do not cover.
The next HHS secretary should assume responsibility for the lack of transparency in Obamacare and should commit the Department to working with Congress and the administration to eliminate the abortion secrecy clause.
At the New Yorker, satirist Andy Borowitz provided his comments on the Town of Greece v. Galloway case. At first, I thought he was satirizing the dissent and its idea that the public square could be “religious free.” Then I caught myself and realized he was satirizing the majority opinion. Borowitz writes:
“In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started.
By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place.
“The separation of church and state has been a cornerstone of American democracy for over two hundred years,” said Justice Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”
Calling the decision “historic,” Justice Antonin Scalia was guarded in predicting what the Court might accomplish next.
“Last year, we gutted the Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”
The reason for my initial (mistaken) impression in identifying the target of his satire, however, is that it SO eloquently describes Justice Kagan’s dissent in Galloway. Borowitz could have written (about the main dissent):
“In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started—[religious freedom].”
By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place—[freedom from government interference with their religious practices].”
“The separation of church and state [Religious freedom] has been a cornerstone of American democracy for over two hundred years,” said Justice [Elena Kagan] Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”
Calling the decision “historic,” Justice [Stephen Breyer] Antonin Scalia was guarded in predicting what the Court might accomplish next.
“Last year, we gutted the [Defense of Marriage Act] Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”
“[People have had the ability to pray according to their conscience for far too long,” Kagan continued. “It’s about time religious freedom is sidelined so the government can once again edit prayers for nonsectarian compliance, in accord with the proud Establishment traditions of the Old World].”
Borowitz might be disheartened (or perhaps heartened) to know his satire is actually (unwittingly) poking fun at the liberty-opposing dissent in Galloway. Nevertheless, it does. Indeed, it was Justice Kagan and her fellow dissenters who would have the government in the business of editing prayers for compliance with nonsectarian principles established by the government. Such government interference with religion was the very tyranny the Founders fled from. It was unconstitutional then, and is equally unconstitutional today.
U.S. Rep. Debbie Wasserman Schultz is chairperson of the Democratic National Committee. Her job is to help her party advance its agenda in law and society and elect others who will work to this same end.
It is revealing, and rather remarkable, that Ms. Wasserman Schultz is now arguing that “Obamacare” - once touted as the President’s greatest achievement - really isn’t that big of a deal to voters. “The Affordable Care Act is not the first thing that people in a town hall meeting are asking about,” she reports.
Maybe not. But even if her claim is true, what does that say about an electorate so disillusioned by Mr. Obama’s catastrophic health care “reform” that they are not bothering even to understand it anymore? “Obamacare (Approval) Hits New Low,” according to Monday’s Washington Post. The question for Ms. Wasserman Schultz and her ideological colleagues is, how low will this corrosive “reform” drive Democratic turnout in November?
Yesterday, in a 5-4 decision in Town of Greece v. Galloway, the Supreme Court ruled in favor of the Town of Greece in a challenge to its legislative prayer practice. This is a major win for religious liberty, and for the free expression of religion in public spaces.
So what happened?
The Town of Greece, New York, had for years maintained a practice of permitting local ministers from the area to offer a brief prayer before town board meetings. The town opened these meetings to all ministers who would respond, and never exercised control over, edited, or censored the content of prayers. Even though the town opened the opportunity to ministers of all faiths, the town was overwhelmingly Christian, so the responding ministers happened to be Christian. Town of Greece v. Galloway, 572 U.S. ____ (2014) (slip op., at 1-3). After Susan Galloway and Linda Stephens complained, the town invited Jewish, Baha’i, and even a Wiccan priestess to give prayers. Id. at 3-4. Galloway and Linda Stephens still sued, claiming the town “preferred” Christianity — as a remedy, the plaintiffs asked the town to limit prayers to “inclusive and ecumenical” prayers referencing a “generic God” not associating the government with one belief. Id. at 4.
What did the Supreme Court say?
The Court began its analysis by relying on Marsh v. Chambers, 463 U.S. 783 (1983), in which it held that there was no Establishment Clause violation when a state legislature opened session with a prayer by a chaplain paid by state funds. Galloway, slip op., at 6. None of the Establishment Clause “tests” apply in this context, the Court continued, for “history support[s] the conclusion that legislative invocations are compatible with the Establishment Clause.” Id. at 7. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Id. at 8. Setting the groundwork for future cases, the Court continued: “Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Id. at 8. “A test that would sweep away what has so long been settled” — such as legislative prayer — “would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Id. at 8.
After these preliminary remarks, the Court restated the question before it: to determine “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” Id. at 9. In doing so, it addressed the opponents’ two main arguments.
Opponents’ first argument: Any prayer must be nonsectarian, or not identifiable with any one religion (in this case the prayers “use[d] overtly Christian terms” or “invoke specifics of Christian theology”).
The Court’s response: The Court responded that “[a]n insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer” in the Court’s jurisprudence. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.’” Id. at 10. The Court noted that specific Christian references during legislative prayers have been made throughout the history of our country, and Congress has also permitted Jewish, Buddhist, and Muslim prayers. Id. at 10-11. “[T]he contention that legislative prayer must be generic or nonsectarian” is “irreconcilable” with a proper reading of precedent, for “Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.” Id. at 11-12. In Marsh, and in its present ruling, “the Court instructed that the ‘content of the prayer is not of concern to judges,’ provided ‘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.’” Id. at 12.
The Court drilled in on the precise issue: “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Id. at 12-13. Government-mandated prayer language would not be much different from legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.” Id. at 13. “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” — this is a “contradiction that cannot be accepted.” Id. at 13 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992).
Indeed, it would be quite ironic for the government to “establish” its version of nonsectarian prayers in an effort to avoid violating the Establishment Clause. As the Court noted, such “‘untutored devotion to the concept of neutrality’ must not lead to ‘a brooding and pervasive devotion to the secular.’” Id. at 13 (quoting School Dist. of Abington Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).
Ironically, while the opponents of the prayers in this case are upset that only “majority” religions will have their prayers recited, they violate their own principle of upholding minority religious interests in desiring to craft “non-sectarian” prayers acceptable to…..well, a majority of those present. The Court repudiated such thinking with the following reminder: “The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian,” so long as the prayer does not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion. Id. at 14-15. Indeed, the Court’s opinion upholding the “all comers” policy actually protects minority interest.
Finally, the Court noted, the town’s policy (which was open to prayers of all faiths) was not unconstitutional merely because nearly all the congregations in the town were Christian. As long as the town does not discriminate (which it did not), it is not required to search for some type of unattainable “religious balancing.” Id. at 17-18.
Opponents’ second argument: The opponents of the prayer also argued that the town’s prayer practice “coerces participation by nonadherents” because “the setting and conduct of the town board meetings created social pressures that force non adherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.” Id. at 18.
The Court’s response: The town of Greece, “through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings,” did not “compel its citizens to engage in a religious observance.” Id. at 19. The Court acknowledged that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” yet “[n]o such thing occurred in the town of Greece.” Id. at 20. The opponents may have felt “offended,” but as the Court pointed out, “[o]ffense … does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.” Id. at 21. “[L]egislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.” Id. at 22.
It was heartening to see Justice Kennedy observe that “since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs,” and thus, the prayer policy of the Town of Greece “is not an unconstitutional establishment of religion.” Id. at 23. The Court concluded: “The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.” Id. at 24.
Justice Alito was joined by Justice Scalia in his concurring opinion, where he responded to the dissent’s charges that the town should have required nonsectarian prayers and brought in representatives from different religions. Obviously, one of the concerns of adopting a policy of general nonsectarian prayers is facing the question of who screens such prayers and decides exactly what level of “nonsectarian” quality is required before permitting the prayer. Galloway, slip op., at 5 (Alito, J., concurring). Justice Alito also reiterated that requiring local governments to compile a list of potential prayer-givers in a certain way would only confuse already confusing Establishment Clause jurisprudence. Id. at 7.
Justice Thomas wrote a concurring opinion (joined by Justice Scalia) in which he argued the Establishment Clause was not meant to be incorporated as to the states, but even if it was, the prayer policy here does not violate it. Galloway, slip op., at 1-5 (Thomas, J., concurring). Justice Thomas argued that in accordance with the Founders’ positions on this issue, only legal coercion regarding a certain religious belief would violate the Establishment Clause. Id. at 7.
Justice Breyer dissented and ultimately concluded — albeit based on his “legal judgment” as opposed to any standard or legal test — that because the prayers were almost all Christian, the Town of Greece did “too little to reflect the religious diversity of its citizens.” Galloway, slip op., at 5-6 (Breyer, J., dissenting).
Justice Kagan also dissented for similar reasons, and was joined by Justices Ginsburg, Breyer, and Sotomayor in her dissent. She believed the Town of Greece violated the “norm of religious equality” conferred by the First Amendment, Galloway, slip op., at 1 (Kagan, J., dissenting), by not doing enough to ensure diverse prayers of various faiths were presented. According to Justice Kagan, the town could have also presented more nonsectarian prayers, which in her view, it did not. Justice Kagan argued that the Town of Greece, in permitting explicitly Christian prayers, caused citizens who came before the town to conduct business to feel compelled to participate in order to not interfere with their government business. Id. at 2-8. She believed the prayers here were “addressed directly to the Town’s citizenry,” as opposed to being addressed to the legislators like in Marsh, and “were more sectarian, and less inclusive, than anything this Court sustained in Marsh.” Id. at 9. In essence, like Justice Breyer, Justice Kagan believed the town did not do enough to promote religious diversity, and thus its prayer policy was unconstitutional.
What do I say?
The main dispute between the majority and the dissenters in this case was over whether the Town of Greece was required to take active steps to ensure more religious diversity in the prayers offered before meetings. None of the justices could dispute the prayer policy permitted all comers — it clearly permitted those of all faiths to come and offer prayers in accordance with their beliefs. For the majority such a policy was constitutional. Justice Kagan and her fellow dissenters, however, would have required the policy to be more highly publicized to representatives of all faiths to ensure they knew they could come and pray, and would have liked the town to take additional steps to ensure more faiths were represented. For the justices in the majority, a policy of nondiscrimination between religions was enough (thus permitting the town to remain passive and out of religious determinations), while the dissenters are promoting active government interference in religion by requiring the town to determine what efforts are sufficiently “inclusive.”
Here’s my problem with the dissenters’ view — it would have required the town to (1) either mandate a sufficiently nonsectarian prayer (thus requiring the town to be the active arbiter of what is sufficiently nonsectarian) or (2) take steps to ensure more diversity (thus actively involving the town in deciding how and what religious views are solicited). In either case, town is taking proactive steps as regards religion.
If a town is drafting a “nonsectarian” prayer, who decides what is sufficiently nonsectarian? Who decides what words are included, and what phrases are used? There is obvious opportunity for abuse and unnecessary interference with religion by the government in such a scenario, which, thankfully, the majority recognized when it stated, “[t]o hold that invocations must be nonsectarian would force the legislatures … to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree … .” Galloway, slip op., at 12-13. Moreover, the problem with nonsectarian prayers is in seeking to associate the government with all beliefs, you water them down, and associate the government with nothing but muzzled incoherency.
If mandating more religious inclusivity, who decides what steps are needed? What methods are used? Should a town conduct a search within a fifty mile radius for ministers of different faiths? Is a phone call notifying those ministers sufficient? Or must the ministers be incentivized to come and pray? How many different faiths are required — four or five? Ten or eleven? Should ministers be invited in accordance with the percentage of the local population adhering to that religion? As is obvious, such questions are not only ridiculous, but involve the government in religious decision making, and all the opportunity for abuse that entails. In addition, Justice Kagan’s requirement of more religious inclusivity is open-ended, and would leave local governments guessing at what is required of them. The dissent’s position would open the door for more lawsuits regarding exactly what proactive steps are required.
In either scenario, the dissenters promote active government involvement in religious decision making, and thus interference with religion, the very things they claim to be against. Justice Kagan’s position would not do away with the problem of the government “align[ing] itself with, and plac[ing] its imprimatur on, a particular religious creed,” Galloway, slip op., at 5 (Kagan, J., dissenting), but would merely shift the legal battleground into how much government promotion of religious diversity is required.