by Gerard V. Bradley
Justice Kennedy’s opinion in Greece v. Galloway is the Court’s best piece of Establishment Clause work in decades—and a happy omen for religious liberty in our country.
Earlier this month, the Supreme Court affirmed the constitutionality of opening legislative meetings with prayer. That outcome is no surprise; the smart bet has long been that the Court would uphold praying for lawmakers on the strength of its 1983 decision in Marsh v. Chambers. The Court’s five-to-four split is no surprise either, save to the few who thought that Justice Breyer might join the religion-friendly Justices Scalia, Alito, Thomas, Kennedy, and Chief Justice Roberts in the majority.
The surprise—and it is a big one—is that Justice Kennedy’s majority opinion did not stick to the reasoning of the more limited 1983 case. He did not equivocate or dither. Instead, Kennedy authored a bold and almost uniformly lucid opinion that secured a wide constitutional berth for robustly “sectarian” prayers. Kennedy’s opinion is the Court’s best piece of Establishment Clause work in decades—and a happy omen for religious liberty in our country.
Prayer vs. Ceremonial Verbiage
The recent case arose in Greece, New York, located just outside Rochester. For many years, the town council opened its monthly meetings with prayers by community religious leaders who were selected randomly from local congregations. An overwhelming majority of these prayer-givers were Christians, praying as Christians are wont to do: “in the name of Jesus,” “through Our Lord,” to “Our Heavenly Father,” by the “Holy Spirit,” and so on. This proportion was no surprise: the vast majority of Greece’s residents are Christians, as were all of the local religious congregations during the litigated period of time.
This vast preponderance was nonetheless the basis for the lower appellate court’s invalidation of the prayer practice and for the dissent of the four more liberal justices on the high Court. In their view, Greece endorsed Christianity in violation of the First Amendment’s Establishment Clause.
But all of the justices in Greece v. Galloway agreed that they resolved a constitutional dispute concerning sincere invocations of divine blessings and assistance, heartfelt expressions of gratitude for previous blessings bestowed, and recognition of God’s continuing action in the world and everyone’s dependence upon it. All of them agreed that this was a case about prayer.
One might well ask: what is the alternative? Well, the Court has, on other occasions, labeled sacred verbiage “ceremonial deism.” The Pledge’s “Under God” and the Court’s own “God Save this Honorable Court” are examples of language that time and familiarity have—according to the Court—stripped of literal meaning and thus blanched of religious content. These expressions linger usefully because, in the Greece Court’s phrases, they “lend gravity to the occasion” and “reflect values long part of the Nation’s heritage.”
At one point in the Greece decision, Kennedy seems to equate legislative prayer with these phrases. The “reasonable observer” is, according to Kennedy, “presumed [to be] acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens”—as if the “prayer” only functioned to solemnize the occasion, merely acknowledging ambient private sentiment.
The great bulk of Greece’s descriptions of the town’s opening acts, however, leaves no doubt that the Court acted upon them as real prayers, “invo[cations of] divine guidance in town affairs.”
Praying the Truth
The Court preserved these prayers from practically all constitutional attacks, save when the public prayer organizers act in bad faith. “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.” “The content of the prayers is no concern,” according to the majority opinion, so long as there is no indication that “the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” An isolated “disparagement” will not suffice: “Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation” (emphases added).
What counts as “proselytizing” or “disparaging”? We know one thing that does not count, and it is a critical bit of information. In an opinion authored by former Yale Law Dean Guido Calebresi, the lower appellate court went so far as to warn Greece prayer-givers to “resist [the] temptation” to “convey their view of religious truth, and thereby run the risk of making others feel like outsiders.”
The alarming suggestion is that the only way to display respect and tolerance for others’ beliefs is for the prayer-giver to keep his real beliefs to himself or to offer them as one opinion among many others. But every religious tradition consists of a set of claims defining a particular view of reality, that is, of truth. Inviting religious believers into the public square, asking them to “pray,” and then telling them to avoid suggesting that they are speaking the truth from their hearts as they understand that truth to be, only promotes an artificial dialogue, a phony pluralism, and a platitudinous civil religion.
Greece v. Galloway could not have more resoundingly rejected this whole notion of self-censorship. The majority declared, “Once 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.” The purpose of the Establishment Clause is not to protect some empty civic ritual or politico-theological civil religion. Prayer-givers may speak from the heart (“conscience”) in sectarian terms. They may speak what they believe to be true.
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