In this final post of this series, I will look at the possible range of rulings that the US Supreme Court may come down with in the Greece v. Galloway case and then suggest what I think may happen.
Establishment Clause court rulings have been somewhat idiosyncratic, leading to the suspicion that judges go into them with the kind of ruling they want and then find reasons for it. We have seen that in the early days they argued that governments should maintain strict neutrality between religions and between religion and nonreligion but at later times they sometimes said that they should merely be neutral between religions. In order to establish if those boundaries had been crossed, they have enunciated various doctrines (the Lemon test and the endorsement test) or invoked the ‘history and tradition’ justification with the added requirement that the prayers not ‘proselytize, advance, or disparage’ religions, and that there be no coercion on people to conform.
At other times the court has argued that certain practices and language that appear on the surface to be religious (like mottoes invoking god on currency and oaths) have over time been drained of religious significance and have now become merely rote expressions or secular symbols and hence their use does not constitute an endorsement of religion. In other cases, such as the Mojave Cross case Salazar v. Buono (that I did not discuss in this series), they argued that the issue was not really about religion but about property.
In short, we have ended up with pretty much a hodge-podge that makes it hard to predict the outcome of any given case.
The prayer practices in Greece case seemed to be completely compatible with the 1983 March precedent so by taking the case instead of summarily overruling the Second Circuit Court of Appeals, I thought that some justices were either signaling dissatisfaction with the Marsh precedent and were planning to make a more sweeping ruling on the role of prayer in public life or were hoping to formulate a new doctrine that would enable lower courts not to have to pick and choose between the various tests that have been used in the past.
The two most extreme and sweeping rulings would be that either all prayers at government functions are unconstitutional or (Scalia’s suggestion) that prayers are merely the personal expression of the prayer giver and hence anything is allowed. After listening to the oral arguments, I suspect that neither extreme is going to gain majority support and so it is likely that the court will rule more narrowly.
Here justice Ginsburg’s comments may suggest an option for how to fashion such a ruling. She pointed out that the Greece town meetings had both legislative and administrative functions. The meetings started with a prayer and then the town council conducted its business and then about half an hour later, it switched roles while in the same room and became an administrative body that dealt with citizen concerns. So the court could argue that this hybrid body is a special case and make a ruling that applies only to similar bodies.
But that ruling could go either way. The court could conclude that prayers in such situations are not permissible because the separation between the legislative and administrative functions was not great enough to prevent people who had business before the council not to feel coerced. Or it could rule that the separation is great enough that people who did not like the prayers could skip it and come later and so there was no coercion and hence the prayers were fine. It would depend on whether the pro-prayer or anti-prayer faction of the nine justices can gain a majority. I suspect that it will be the pro-prayer group.
I think that a ruling against prayer makes the most sense because there is no other way to ensure that everyone feels treated equally. During the oral arguments, Justice Kagan pointed out the issue that must be kept in mind.
“Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way.” (p. 52)
She later expanded on the point:
“Here’s what our –our country promises, our Constitution promises. It’s that, however we worship, we’re all equal and full citizens. And I think we can all agree on that.
And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do.
And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers. (p. 24)
Kagan was echoing the sentiment of the Second Circuit Appeals Court that ruled against the prayer where they pointed out that “Ours is a society splintered, and joined, by a wide a constellation of religious beliefs and non-beliefs.”
But the case for maintaining the separation between government and religion was best made by now-retired justice Sandra Day O’Connor in her concurring opinion the 2005 case McCreary County, Kentucky, v. ACLU, where she warned those who sought to break down that barrier.
Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish…. Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly? [My italics]
But a lot of religious people in the US refuse to answer that question of learn from their own nation’s or other nations’ histories because they want their god and their religion everywhere.