Supreme Court: Tear Down This Wall!

The town of Greece, New York has been kicking off its town board meetings with an invocation by a religious leader since 1999. These prayers have generally been sectarian Christian ones. Two residents of the town sued, arguing that this practice constituted a state endorsement of religion inconsistent with the Establishment Clause of the First Amendment. Yesterday, the Supreme Court ruled that sectarian prayers are constitutional. The decision is an affront to religious equality, but it reflects the poisoned fruit of a bad precedent.

It must be conceded that the Court's holding is based in precedent. With Justice Anthony Kennedy writing for the Court's other four Republican nominees, the 5-4 majority in Greece v. Galloway leaned heavily on the 1983 case Marsh v. Chambers. In Marsh, the Court upheld the Nebraska legislature's tradition of starting each legislative session with a prayer by a chaplain paid for and approved by the state. Based on Marsh, Kennedy found little difficulty in upholding Greece's prayers as well, asserting that the city's state-sanctioned prayers fell "within the tradition long followed in Congress and the state legislatures." The majority also found that the prayers did not coerce citizens into participating in a religious exercise, which would also run afoul of the First Amendment.

The dissents by Justice Elena Kagan (speaking for the Court's four Democratic nominees), as well as the seperate one filed by Justice Stephen Breyer, noted that the majority's application of Marsh was, at best, highly questionable. First, while in Nebraska the audience for the prayer consisted only of elected legislators, in Greece the town meetings were forums for citizen engagement. "[T]he Board’s meetings," Kagan observed, "are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters." This places a particular obligation on the town to ensure that the prayers are inclusive, but "the prayers given in Greece, addressed directly to the Town’s citizenry, were more sectarian, and less inclusive, than anything this Court sustained in Marsh."

The presence of citizens and the sectarian nature of the prayers in Greece's town meetings, the dissenters argued, failed both crucial components of the standards laid out by Marsh: They fall outside the tradition of legislative prayers and they are coercive in the way traditional invocations aren't. Therefore, even assuming Marsh is correct, Greece is in violation of the First Amendment.

I think the dissenters are right that Greece goes beyond what Marsh permitted. And I also admire Kagan's articulation of why a robust interpretation of the Establishment Clause is so important. The First Amendment is a promise of equal citizenship, a "promise that every citizen, irrespective of her religion, owns an equal share in her government." The sectarian invocations at Greece's town meetings send a message that people of minority faiths are not full members of the community. "When the citizens of this country approach their government," Kagan reasons, "they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines."

The problem, however, is that these principles are violated no less by the prayers upheld in Marsh as those upheld in Greece. As Justice William Brennan's dissent in Marsh made clear, the Court's rationalization of legislative prayers amounted to an argument that the tradition had become self-justifying. Even if state-sanctioned prayers could be given by a broad array of religious leaders and have non-sectarian content, they would send a message that people who do not subscribe to a religious faith are not full members of the community. And it is enormously unlikely that legislative prayers would be either non-sectarian or fully inclusive in their selection of religious leaders. Marsh was wrong, and Greece simply compounds the error.

Remarkably, this opinion did not go far enough for two members of the majority. Justice Clarence Thomas filed a concurring opinion in which he repeated his view that the Establishment Clause does not apply to the states at all. The state of New York, in his view, is free to endorse religion in any way it chooses, up to and including choosing an Archbishop of Albany to serve as head of the Church of New York State. Justice Antonin Scalia did not join that part of Thomas's concurrence, but he did sign on to a subsequent section that would water down the coercion doctrine down to next to nothing.

Town of Greece will lead to a substantial increase in official, state-sanctioned sectarian prayers. This will undermine the equal status of minority religions, and may lead to conflicts within the majority religion as well. These are precisely the kind of outcomes the framers of the First Amendment sought to avoid.

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