Tag archives: Greece v. Galloway

Satire upon Satire upon Galloway

by Travis Weber

May 7, 2014

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.

Town of Greece v. Galloway

by Travis Weber

May 6, 2014

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.

Concurring opinions:

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.

Dissenting opinions:

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.

O Say Canada Can You See?

by Robert Morrison

May 6, 2014

My colleague Rob Schwarzwalder’s blog post on the important Supreme Court case of Town of Greece v. Galloway raises the central issue in this dispute. The town fathers went out of their way to welcome prayers by citizens of other religions than Christianity. They recognized their own obligation to cast their nets broadly. No one could reasonably say his religion was being disrespected. But that good faith effort, that exercise in civility, was not enough for Citizen Galloway. Instead, this person determined to take her complaint all the way to the U.S. Supreme Court. Forget civility. Forget good neighborliness. If I am offended, I have a constitutional right to shut down my fellow citizens’ freedom of speech and free exercise. Or so this claimant thought. And whenever any atheizer is unhappy that his neighbor believes that this is one nation under God, there will be wealthy and powerful pressure groups racing in to court, ready to help extinguish the lamp of religious liberty.

Rob Schwarzwalder asks where is the civility, where is the maturity in that? He’s right. Not every crank has a cause of action.

I’ve always been impressed by the baseball fans at Baltimore’s Camden Yards. Whenever the Orioles play Toronto Blue Jays, the fans all stand for “The Star Spangled Banner.” (And they shout out the “O’s” in “O Say.”) Those fans should be especially proud to belt out our National Anthem this season, since it’s the Bicentennial of Francis Scott Key’s powerful poem that has become our stirring song.

After our National Anthem, everyone stands respectfully for our Northern neighbor’s National Anthem, the beautiful and evocative “O Canada.”

No one petulantly refuses to honor the other country’s anthem. That’s a tribute to true civility. But we should not forget that two hundred years ago, Britain ruled Canada and used it as a base to make war on us. Those “rockets’ red glare” and ” bombs bursting in air” were British rockets and British bombs. And Canada remained loyal to the British in their attempt to destroy our young republic.

As for the Canadians, their anthem contains the verse “O Canada, we stand on guard for thee.”

On guard against whom? It’s not against the Moose or the Polar Bear. They stand on guard against the Yankees — US!

Both National Anthems are written (in effect) against the other. And yet we are today the best of friends.

Different systems, different perspectives. Very different national goals and ethos, but we are more than civil, and more than good friends. Canada and the U.S. enjoy the longest undefended border in the world.

The key is to honor your neighbor and respect his traditions.

We can certainly learn a lesson in cordiality at Camden Yards. Instead of having to sue one another, maybe we should say “Take me out to the ball game!”

Justice Kennedy’s Reminder: Some Americans Just Need to Grow Up

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.

Kennedy continues:

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

looming crisis.

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.

Theologians for Prayer (You Read that Right)

by Rob Schwarzwalder

January 11, 2013

On January 7, the director of FRC’s Center for Religious Liberty, Ken Klukowski, filed a compelling brief with the U.S. Supreme Court concerning efforts to prevent prayer at the beginning of government meetings (whether they be local, county, state, or federal). Signed by 49 Members of Congress, including the chairman of the House Judiciary Committee, the document makes a convincing argument that prayers before government meetings are constitutional and a matter of religious liberty for all Americans. A description of the brief, and the brief itself, are available here.

FRC President Tony Perkins, noting the importance of the case, said:

The Founders understood that religion is good for society, and defended “the free exercise thereof.” Family Research Council is honored that 49 Members of Congress, including the chairman of the House Judiciary Committee, have chosen FRC to present their arguments to the nation’s highest Court. We hope the Supreme Court will reject the freedom-threatening Second Circuit opinion in this case, and reverse it.

Ours was not the only brief filed this week. A group of prominent theologians, Protestant and Catholic, filed their own brief with the Court, making a strong argument for legislative prayer. The conclude eloquently:

Ultimately, attempts to promote “civic religion” or “religious neutrality” must establish the judiciary as the arbiters of the “neutral”’ orthodoxy. This orthodoxy would necessarily favor some religions over others. The only way to avoid this establishment of religion and to remain truly neutral is to follow the guidance of Marsh v. Chambers: refusing to consider the content of any prayer and permitting each person to pray according to the dictates of conscience.

FRC’s friends at the Alliance Defending Freedom have compiled a list of all relevant briefs, including FRC’s and that of the theologians, here. As we go forward advancing your religious liberty in this effort, we ask for your prayers, both for wisdom for us and for a sound outcome from the nation’s senior jurists.

Archives