"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."Thomas Jefferson, Letter to the Danbury Baptists, 1802
In my opinion, the Supreme Court's decision in Town of Greece v. Galloway, issued this week, has broken down the wall contemplated by Jefferson but supplied no clear alternative arrangement. In fact, it seems that the Court clearly repudiated the idea of "ceremonial deism" championed by former Justice O'Connor, which I likewise favored in my previous blog post on this case.
As I discussed before, this case involves the predominately-Christian prayers held at the start of Town Board meetings in the Town of Greece, New York. This kind of public prayer associated with a local government obviously entails the religion clauses of our First Amendment, which simultaneously guarantee citizens' "free exercise" of their religious beliefs, and "non-establishment" of one particular religion (or any religion) by the government. These two clauses of the Amendment display a clear tension: if, for instance, the Town Supervisor is a devout Christian and is forbidden from any religious expression during his time at the Town Board, such would negatively impact his freedom of expression. However, if that devout Town Supervisor decided to only hire fellow Christians, or impose special taxes on non-Christians, the government would be unlawfully "establishing" an official state religion. Thus, there is a broad spectrum from maximum-expression (with collateral establishment issues) to maximum non-establishment (with collateral freedom of expression issues). It is ultimately up to the courts (and usually the Supreme Court) to decide where the allowable point on that spectrum should be.
Unfortunately, the courts (and especially the Supreme Court in this case), provide very little usable guidance on these matters. There have been dozens of different tests and rulings on a host of religious issues in the past 100 years, and the rulings have fallen on many different points on that spectrum. In the Galloway case decided May 5th, there are no less than 5 official opinions (a majority by Kennedy; a concurrence by Alito; a concurrence by Thomas; a dissent by Breyer; and a dissent by Kagan), and two plurality opinions (i.e. part of Kennedy's majority opinion was only joined by two other Justices (Roberts and Alito), while Thomas' concurrence was only joined by Scalia in one part). Almost every Supreme Court judge gave their opinion on this matter.
As has been widely-reported, the five-Justice majority opinion upheld the right of the Town of Greece to hold pre-session prayers, thus reversing the Second Circuit's ruling in this case. In essence, the majority held that the test for the courts in this matter should be whether "the prayer practice in the town ... fits within the tradition long followed in Congress and the state legislatures", as approved by the Court previously in the case of Marsh v. Chambers (which approved of opening prayers in the Nebraska legislature). According to Justice Kennedy's opinion, "Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted." Galloway, 572 U.S. ____ (2014) (Kennedy, at p. 8). The majority squarely rejects the idea - what I would say constitutes ceremonial deism - that "nonsectarian or ecumenical prayer as a single, fixed standard" is necessary for the opening prayer at issue to be constitutional. Instead, "Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. ... [and] 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.' ... Government may not mandate a civil religion that stifles any but the most generic references to the sacred any more than it may prescribe a religious orthodoxy." (Kennedy, at pp. 12-13). This latter prohibition - on government control of the content of an opening prayer - is consistent with the aversion to imposing on the prayer-giver's freedom of expression. "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." (Kennedy, at p. 14).
But then how can (or should) a municipality insure that it is not "establishing" preference for one religion over another? The majority declares that "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation." (Kennedy, at p. 17). I find this troubling, in that it creates a kind of "smell test" for constitutional violations of the Establishment Clause. This brings to mind former Justice Stewart's famous obscenity test: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." Jacobellis v. Ohio, 378 U.S. 184 (1964) (Stewart, J. concurring). The majority in this case found that - although the Town used almost exclusively Christian clergy - it did not cross the "proselytizing" line, and "[s]o 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." (Kennedy, at p. 18).
The reason why I feel that the "wall of separation" coined by Jefferson has been conclusively breached, is that, not only does the majority opinion accept sectarian prayer in government contexts as non-violative of the Establishment Clause (and seemingly disdains more inclusive neutral / deist prayer), but the minority opinion authored by Justice Kagan likewise states that "I do not contend that [the principle of religious equality] translates here into a bright separationist line ... [a]nd I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality." (Kagan, at pp. 1-2). Furthermore, statements of profound belief articulated by some of the prayer-givers "'speak of the depths of [one's] life, of the source of [one's] being, of [one's] ultimate concern, of what [one] take[s] seriously without any reservation' ... If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different - and, I think, poorer - place to live." (Kagan, at pp. 22-23, quoting from The Shaking of the Foundations). Thus, it seems to me, that the majority and dissenting Justices on the Supreme Court differ little in their jurisprudential concepts rejecting strict separation of Church & State, instead favoring pluralistic expression of various citizens' faiths in the public, governmental, sphere. The only real difference is their interpretation and assessment of the facts at issue in this case: whether or not the Town of Greece was as inclusive of various sects as they should be, rather than whether the Town impermissibly supported any sects at all.
While men and women of good conscience can disagree about religious doctrines, I believe it provides little assistance to municipalities and individuals trying to strike the right balance between religious expression protected by the First Amendment and religious establishment forbidden by the First Amendment, to say, in effect, "too much sectarian proselytizing in public prayer is bad" but the facts of each individual case will be the deciding factor. Although Justice Alito concurred (agreed) with the majority opinion, I think the majority's ruling ignores a very cogent observation made in Alito's concurring decision. That is, Justice Alito states "[m]any local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation, already think that the safest course is to ensure that local government is a religion-free zone." (Alito, at p. 7). The majority's opinion in this case does nothing to dispel government officials' bewilderment by saying that mostly-Christian opening prayers (that were ostensibly available to all faiths to give) were in accord with Marsh and not violative of the Establishment Clause ... but a more "proselytizing" or "denigrating" series of sectarian opening prayers might be.
