Monday morning the Supreme Court released its ruling in Greece v Galloway, which involved the question of “sectarian” prayers at local government meetings. The result was a predictable ruling that poses a great danger to the idea of separation of church and state. You can read the full ruling here.
One of the key dangers in the ruling is that it ignored the Lemon test completely and also ignored the endorsement test favored by retired Justice Sandra Day O’Connor. The ruling was based largely on the coercion test instead, though there was disagreement among the majority as to how narrowly to define that test. Lyle Denniston of ScotusBlog explains:
Narrowly defining what is not allowed in such prayers, the Court said they may not be used to praise the virtues of one faith and may not cast other faiths or other believers in a sharply negative light. Courts have no role in judging whether individual prayers satisfy that test, but can only examine a “pattern of prayer” to see whether it crossed the forbidden constitutional line and became a form of “coercion.”
The majority clearly moved the “coercion” test to the forefront of analyzing when government and religion are too closely intertwined. The alternative test — whether government action “endorsed” a particular faith — was nearly cast aside as taking too little account of the role of religion in America’s history and civic traditions.
The Court’s majority was divided in the case, but only on how “coercion” is to be defined in a constitutional sense. Three Justices said that test is satisfied if a town’s governing body ordered the public to join in prayer, criticized “dissidents” who did not share the prayer’s beliefs, or indicated that official action would be or was influenced by whether someone did or did not take part in the prayer exercise. That group spoke through the lead opinion, written by Justice Anthony M. Kennedy — long an advocate of the “coercion” approach and long a critic of the “endorsement” test. His plurality opinion was joined by Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr.
Two Justices argued that a “coercion” test would be satisfied only if a local government had actually compelled people to be followers of one faith, such as requiring people to go to religious services or to pay taxes to pay for religious institutions. They spoke through an opinion by Justice Clarence Thomas, joined by Justice Antonin Scalia on that point alone.
Thomas and Scalia have long argued that the only thing that violates the Establishment Clause is actual coercion by the government. Roberts and Alito haven’t had much opportunity to rule on EC cases until now so it was unclear exactly what position they would favor, but this is a very disturbing basis for the decision. If the only thing the government can’t do is coerce religious exercise, it is free to provide a huge range of support for religion aside from that.
Couple this with the fact that it’s nearly impossible to get taxpayer standing to challenge government spending to support religion and you now have very few limits on the kinds of support the government can now give to religion. The range of government actions that are now considered a violation of the Establishment Clause is much narrower now than it was before the ruling and that is a very bad thing.
Kennedy also based much of his reasoning on tradition, noting that the first congress hired a Christian chaplain and that this practice has gone on continually since then. Well yes, but if tradition is the test of what is allowed then why doesn’t Kennedy say that legislative bodies should be free to hire a specifically Christian chaplain and have him deliver only Christian prayers? This case involved rotating prayers by members of local churches and Kennedy goes out of his way to say that there’s nothing unconstitutional about it because the process if open to non-Christians even if few of them ever actually do give the invocations. But if tradition is the test, why should they even be required to do that? The first congress did not give the opportunity for Muslims, Jews or any other religious person to say the prayer. It seems that tradition only goes so far.
It’s a good idea, I think, to look at what James Madison said about this practice in his Detached Memoranda:
Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?
In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.
The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers. or that the major sects have a right to govern the minor.
If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expence. How small a contribution from each member of Congs wd suffice for the purpose? How just wd it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? Why should the expence of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt
This reasoning is all the more important today when we are a far more religiously diverse country than we were in 200 years ago.