Chapter 3 Excerpt for Our Non-Christian Nation
3
SECULARISM, STATEHOUSES, AND SCHOOL BOARDS
Prayers and Invocations before Government Bodies
UNLIKE ITS SOUTHERN EUROPEAN NAMESAKE, the town of Greece, New York, is known for neither its ancient philosophical figures nor its delicious salads.* The sleepy town of just under a hundred thousand residents is a fairly nondescript suburb of Rochester; until about the turn of the millennium, its biggest moment of fame was probably when brothers John and Walter Wegman founded Wegman’s Food Market in the early 1930s. The town is run by a five-person board that meets monthly and makes decisions about zoning and parks and all other sorts of local business. Before 1999, the Greece Town Board, like many similar bodies across the country, began its meetings with a moment of silence.
In 1999, however, the town supervisor, a guy named John Auberger, decided that the town board would henceforth start each of its meetings with an actual prayer, given by a local member of the clergy. A town employee had the job of contacting all the religious organizations in town and asking if anyone there would want to pray at the town meeting. A list of people who were interested in doing so was compiled, and between 1999 and 2007, town employees would call the individuals on the list to schedule them to deliver the opening prayer. During this eight-year period, every single person invited to pray before the monthly town meeting was Christian.
Although about a third of the prayers were kind of generic (they referred not to Jesus, for example, but to the “Heavenly Father” or the “God of all creation”), the rest were thoroughly and explicitly Christian. According to a federal appeals court that was completely familiar with the record:
Roughly two-thirds [of the prayers] contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.” Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ’s name. Typically, prayer-givers stated something like, “In Jesus’s name we pray,” or “We ask this in Christ’s name.” Some prayer-givers elaborated further, describing Christ as “our Savior,” “God’s only son,” “the Lord,” or part of the Holy Trinity. One prayer, for example, was given “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.” Other prayers, including ones not expressly made in Christ’s name, spoke of “the role of the Holy Spirit in our lives,” and celebrated Christ’s birth and resurrection.
Beginning sometime in 2001, a soft-spoken, civic-minded resident of Greece named Linda Stephens began attending the monthly town meeting in her capacity as a member of a town parks organization. Stephens is a longtime Atheist, and she found the town’s practice of beginning each of its sessions with a Christian prayer to be highly irritating and offensive. In 2008, she and a fellow dissenter, a Jewish resident named Susan Galloway, began complaining to the town leaders about the prayer. In response, the town invited a couple of non-Christians to give the opening prayer, and in 2008 the invocation was delivered by a Wiccan priestess, the chairman of a local Baha’i congregation, and a Jewish layman. These minor exceptions to the Christian-only practice,† however, were not sufficient for Stephens and Galloway, and so, with the help of AU, they sued, claiming that the town’s practice violated the Establishment Clause of the First Amendment.
After Stephens and Galloway lost at the trial-court level, they took the case to the Second Circuit Court of Appeals in New York, and—to the surprise of many—they won. That court thought the relevant issue under the Establishment Clause was “whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs.” Applying that test, the court held that Greece had in fact violated the Constitution, based on the way it chose who would give the prayers, the sectarian language in the prayers, and the fact that “most prayer-givers appeared to speak on behalf of the town and its residents, rather than on behalf of only themselves.” On this last point, the court observed that many of the prayer-givers used first-person-plural language (“let us pray”) and invited audience members to participate in the prayer by standing or bowing their heads.
Unfortunately, the plaintiffs’ victory was short-lived. In a 5–4 decision written by Justice Kennedy, the Supreme Court reversed. I’ll have quite a lot more to say about the opinions in the case of Town of Greece v. Galloway shortly, but for now I just want to flag the part of the opinion in which the Court said that the town may not discriminate on the basis of religion when it chooses who will give the opening prayer or invocation at its meetings. In other words, if a Buddhist or a Wiccan or a Jehovah’s Witness asks to give the opening invocation at a meeting, the town cannot deny the request on the basis that it disagrees with the religious views of the applicant. It took about five minutes after the decision was issued for Atheists and members of minority faiths to start taking advantage of this part of the opinion. Americans United even set up something called “Operation Inclusion” to encourage non-Christians around the country to give invocations at all sorts of legislative and administrative sessions. Many Atheists took them up on the invitation.
One of those Atheists was none other than Linda Stephens, who asked the Town of Greece if she could give a secular invocation before the very board that she had previously sued. The town agreed, and Stephens’s invocation was scheduled for October 2015. Would her invocation cause a holy hullabaloo in town? Would there be protests? Would she be shouted down? Burned in effigy? There was no way I was going to miss the opportunity to witness the occasion firsthand, so the day before the invocation was to take place, I boarded a plane and headed to Rochester.
The practice of opening a governmental meeting in the United States with a prayer goes back to the eighteenth century. Whenever someone says to me that we have a tradition of “separation of church and state” in this country, I like to remind that person (after I stop laughing) that both the House of Representatives and the U.S. Senate have had official chaplains on their payrolls since before the states ratified the Bill of Rights. As someone who has been studying and writing about church-state relations for almost twenty-five years, I have always found that fact to be bewildering. The most important government bodies in the nation have basically begun every session of business for almost the entirety of American history with a prayer. More like shmeparation of church and state, if you ask me.
The Supreme Court has considered the practice of praying before government bodies only twice. The first time was in 1983, when the Court upheld Nebraska’s practice of starting every legislative session with a prayer given by a paid state chaplain. The case was called Marsh v. Chambers, and the Court’s rationale was simply that a practice with such a long historical pedigree could not possibly violate the Establishment Clause. In my first book, I wrote that legal scholars generally agree that Justice Burger wrote his lackluster majority opinion in Marsh “in about five minutes while sitting on the can,” but in retrospect I think this was inaccurate because there’s no way he spent that long working on the decision. The dissent, written by Justice Brennan, explained how legislative prayers “violate the principles of neutrality and separation” protected by the First Amendment by injecting religion into politics, coercing nonbelievers into supporting belief systems with which they disagree and degrading religion, but the majority opinion had nothing to say about any of the objections.
When the Supreme Court finally returned to the issue thirty years later in Town of Greece, the facts differed from those in Marsh in several important ways. For one thing, in Marsh, although the state chaplain was Christian, he nonetheless stopped referring specifically to Christ after a Jewish legislator objected; in the Town of Greece case, however, most of the prayers contained explicit Christian references and imagery. The challengers in Town of Greece argued that although “non-sectarian” prayers might be acceptable, it should be a different story when the prayers were so clearly and overwhelmingly aligned with a specific faith.
Second, while Marsh involved a state legislature, Town of Greece involved a town board. The challengers argued that this was a critical distinction, not only because town board meetings are typically smaller and more intimate affairs where one is more likely to know other attendees than at a legislative session, but also because town boards often are asked to make decisions that directly affect the rights of specific individuals in the town. People come to town board meetings to request business licenses, zoning waivers, and all sorts of other things, and so, the argument went, in that setting an attendee might very well feel coerced to participate somehow in the prayer. Think about it. If you were a non-Christian attending a town board meeting at which the board was about to decide whether to allow you to operate a business, and the board opened the meeting with a Christian prayer, wouldn’t you feel somewhat pressured to stand during the prayer or say “Amen” or otherwise give the prayer your “thumbs-up”? I know I would.
The Supreme Court’s decision in Town of Greece was, to pretty much nobody’s surprise, 5–4 in favor of the town. Justice Kennedy wrote the main opinion, and Justice Kagan wrote the primary dissent. In Justice Kennedy’s view, the practice followed in Greece was not significantly different from the one the Court had upheld in Marsh v. Chambers and was therefore a constitutional recognition of the nation’s religious history and identity. “By inviting ministers to serve as chaplain for the month, and welcoming them to the front of the room alongside civic leaders,” Kennedy wrote, “the town is acknowledging the central place that religion, and religious institutions, hold in the lives of those present.” The practice, according to the majority, is one that the framers of the Constitution clearly supported, as is evident from the fact that “the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment.”
From the perspective of the dissenters, however, the utterly sectarian nature of the prayers given in Greece, as well as the very different setting of the town board as compared to that of a state or national legislature, distinguished the case from Marsh and rendered Greece’s practice unconstitutional. “[T]he Town of Greece should lose this case,” Justice Kagan wrote. “[M]onth in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” Kagan was particularly persuaded by the setting of the prayers. As she put it: “Greece’s town meetings . . . revolve around ordinary members of the community. Each and every aspect of those sessions provides opportunities for Town residents to interact with public officials. And the most important parts enable those citizens to petition the government.” On this point, Justice Kennedy was unconvinced. Perhaps, he mused, things would have been different if the record had shown that the town had treated citizens differently on the basis of how they responded to the prayer, but in his view the challengers had not shown “that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined.”
On the overtly sectarian nature of the prayers, Justice Kagan and the other dissenters thought that it is incumbent upon government bodies in our highly diverse religious society to make sure that those chosen to pray before their meetings speak in the most welcoming fashion possible. “When citizens of all faiths come to speak to each other and their elected representatives in a legislative session,” Justice Kagan wrote, “the government must take especial care to ensure that the prayers they hear will seek to include, rather than serve to divide.” Moreover, speaking “in nonsectarian terms, common to diverse religious groups,” is hardly difficult, according to Kagan; “Priests and ministers, rabbis and imams give such invocations all the time.” Justice Kennedy disagreed. In his view, requiring prayer-givers to speak in non-sectarian language not only would overly involve the government in religious affairs but also wouldn’t solve the problem, since “[e]ven seemingly general references to God or the Father might alienate nonbelievers or polytheists.” On this point, Justice Alito in a separate concurrence added that given the increasing religious diversity of the nation, including the growth of many Eastern religions, “composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder.” In sum, as Kennedy explained, “[o]nce 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.”
In his separate dissent, Justice Breyer reiterated his view from Van Orden that only “legal judgment” and not any kind of judicially created “test” can distinguish constitutional from unconstitutional practices. For him, Greece’s prayer practice fell on the unconstitutional side of the line, in large part because “the town made no significant effort to inform the area’s non-Christian houses of worship about the possibility of delivering an opening prayer.” Justice Alito responded to this argument by suggesting that “[t]he informal, imprecise way in which the town lined up guest chaplains is typical of the way in which many things are done in small and medium sized units of local governments.” Kennedy agreed with Alito, noting that Greece had “made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one.” And then Kennedy added the line that is the most important one in the opinion for the purposes of this book: “So 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.”
Notes
* Okay, I’ve basically stolen this joke from the hilarious comedian Gary Gulman, who has a bit about “what happened to the Greeks,” but that’s all right—we went to elementary school together and he said I could use it.
† Beginning in 2009, the town went back to the practice of inviting only Christians to give the opening prayer.