Religious Liberty and the Ignorant Majority

   Susan Galloway, who is Jewish, and Linda Stephens, an atheist, felt “marginalized” when they had to sit through Christian prayers at the start of meetings of their town board in Greece, N.Y. They complained, but the town supervisor saw no need to change. And at the next meeting the prayer-giver even went out of his way to criticize those who objected to the practice as an “ignorant minority.”
   In reality, the ignorant shoe is on the other feet. The town supervisor and many of the Christian pastors who delivered the opening prayers for the town board were oblivious to the point of ignorance of the limits that Supreme Court precedents and the American tradition of religious freedom place on government-sponsored prayer.
  The arguments from Greece, a midsized suburb of Rochester, reached the U.S. Supreme Court earlier this month [Nov. 6]. The case, Town of Greece v. Galloway, found the justices at least as divided as the townfolk about the use of prayers to open local governmental meetings.
  From one side, Justice Antonin Scalia found the practice not only unobjectionable but even necessary to accommodate the religious rights of the legislators themselves. If citizen legislators invoke the deity before eating, Scalia suggested, they should also be allowed to invoke it before they undertake “a serious governmental task such as enacting laws or ordinances.”
  From the other, Justice Elena Kagan worried that the practice runs afoul of an American principle of equality before the law. “When we relate to our government,” Kagan said, “we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.”
  The constitutional argument begins with the text of the First Amendment, which commands that Congress pass no law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The use of prayers to open governmental proceedings sits uncomfortably with that text. But prayer advocates note that the same Congress that sent that amendment to the states for ratification also approved the hiring of a Senate chaplain to open its sessions.
  The unbroken, 220-year history of paid congressional chaplains is the strongest argument made by the town and the many religious and politically conservative groups supporting it. Over time, a majority of state legislatures followed suit, including Nebraska in the mid-19th century.
  Contrary to the suggestion of the historical argument, the practice was not without controversy. James Madison, the main author of the First Amendment, later regretted his vote as a member of the House of Representatives in approving the paid congressional chaplains. Occasional controversies emerged through the years, and one — from Nebraska — finally reached the Supreme Court early in the 1980s.
  In Marsh v. Chambers (1983), Nebraska state senator Ernie Chambers objected on Establishment Clause grounds to the paid chaplain for the unicameral legislature. By a 6-3 vote, the court found no constitutional bar to the practice. Relying exclusively on history, the court found that the practice had become “part of the fabric of our society” and was “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”
  Tellingly, the court did not cite the conditions laid out a decade earlier in the so-called Lemon test for judging Establishment Clause cases. In that case, Lemon v. Kurtzman (1971), the court said that government action regarding religion can pass Establishment Clause muster only if has a secular purpose, does not have a primary effect of advancing or inhibiting religion, and does not entangle government wit religion. But the court did note that the Nebraska chaplain, Robert Palmer, described his prayers as “nonsectarian” and that he removed references to Christ after 1980 after a Jewish legislator had complained.
  When Greece’s town supervisor decided to institute opening prayers at board meetings in 1999 —  replacing the previous, uncontroversial practice of a moment of silence — many of the pastors chosen for the honor had no such inhibitions. In the Supreme Court arguments, Kagan quoted to the town’s lawyer, Thomas Hungar, one of the prayers from the town’s meetings with extended explicit references to Christian beliefs. Would that be an acceptable way to open a Supreme Court session, she asked. “I don’t think so,” Hungar replied.
  Under pressure from Scalia, Hungar later backtracked from his concession, but his instinct was correct. Sectarian Christian prayers cross a line that the Establishment Clause requires, even if viewed through a historical lens. As University of Virginia law professor Lois Laycock pointed out in his argument on Galloway’s behalf, the 18th century congressional chaplains did not use their government-provided pulpits to address the divisive theological issues of the day, such as predestination. In a country with increased religious diversity today, the need for prayers to strike ecumenical themes is all the greater.
  Some of the justices — notably, Anthony M. Kennedy — seemed to recoil at the notion of government officials editing prayers. But the court itself in Marsh set out two conditions for legislative chaplains: prayers must not proselytize nor advance or disparage any specific religion. As Laycock noted, courts must have the default responsibility to enforce those lines. The justices may be tempted to keep the court out of this controversy, but only the courts can protect the religious liberties of religious minorities when they are ignored by the religious majority.