by Rob Schwarzwalder
May 5, 2014
In the majority opinion he issued today on public prayer, Justice Anthony Kennedy made a number of arguments with serious implications for religious liberty in the United States.
His opinion and the coincident opinions of Justices Alito and Thomas and the dissenting opinions by Justices Breyer and Kagan all deserve close scrutiny. Religious liberty is the foundation of all other liberties, and any time the Supreme Court speaks about it, all Americans should listen carefully.
With that said, there is a particularly noteworthy thread of argument woven throughout Justice Kennedy’s opinion. Several times, he alludes to a fact that needs to be expressed more often, both in our courts and everyday life: Mature adults should act that way.
“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,” he argues. In other words, rather than wear your religious beliefs and cultural mores like touch-sensitive antennae, act enough like an adult that you don’t take offense unnecessarily or easily.
With respect to public prayer, Justice Kennedy writes:
… the reasonable observer is acquainted with this tradition and understand that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews … That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve of its content.
In other words, respect, decency, civility, and self-control are assumed in a nation that is not only diverse in its religious composition (although the overwhelming majority profess some form of Christian faith) but also composed of self-governing men and women who have the common sense not to take offense too readily.
In their declarations in the trial court, respondents (those who filed suit against the Greece council’s permission of sectarian prayer) stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech that they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront rom the expression of contrary religious views in a legislative forum, especially where, as here (Greece, New York), any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.
Hear a religious or political comment you don’t like? Justice Kennedy is saying that unless it is personal, disrespectful, or invasive, deal with it: That’s part of being an adult.
Over-dramatization and sensational hand-wringing derive from our media-driven fascination with the morally lurid, even when that luridness is quite isolated. Consider the responses to the recent repulsive racial comments of Donald Sterling, owner of the Clippers professional basketball team. They were disgusting, but they do not demand an exaggerated inflation of the presence of racism in America. Commenting on the pervasiveness of racism in light of the Sterling affair, Kareem Abdul-Jabbar said, “More whites believe in ghosts than they do in racism”.
Put another way, does racism exist? Sure. But is it representative or preponderant or something about which to be panicked? No. Abdul-Jabbar is calling on his fellow Americans not to get carried away, not to magnify a relative anomaly into a
In the same way, hearing “Jesus” or “the cross of Christ” in a prayer shouldn’t set peoples’ teeth on edge any more than watching a liberal Democrat opine on network television should upset a conservative Republican: You might disagree with the content, but you shouldn’t try to stifle the right of someone to express a profoundly-held belief or conviction as long as it is expressed with adequate civility and courtesy.
Citing Elk Grove Unified School District v. Newdow, Justice Kenney argues that “the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree.” And as to prayer at public or government-related events, he concludes:
Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconstitutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure” (Marsh, 1983).
Justice Kennedy’s ruling is a welcome reminder that some of our fellow citizens just need to grow up. Whether, in our era of political correctness and ready woundedness, they will or not is a different question.