May 8, 2014
Column #1,706
Opening Prayers of Government
By Mike McManus

“What the circumstances here demand is the recognition that we are a pluralistic people too,” wrote Justice Elena Kagan in a minority dissent to the Supreme Court’s decision this week that the monthly town board meetings of Greece, N.Y. which opened with prayer - are constitutional.

Justice Anthony Kennedy, writing for the 5-4 majority, made a compelling case that the upstate town of 94,000 is not coercing its citizens to engage in a religious observance. The purpose of the prayer, led by local clergy, is to “lend gravity to public proceedings and to acknowledge the place that religion holds in the lives of many private citizens.”

Kennedy could find no “impermissible establishment of religion.” Its purpose was to “place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs and follow a tradition practiced by Congress and dozens of state legislatures.”

A town employee called the churches listed in a local directory, all Christian. From 1999 to 2007 no prayers were offered by non-Christians. And some spoke in “a distinctly Christian idiom,” Kennedy said: Before Easter one prayed, “It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross.”

Residents Susan Galloway and Linda Stephens, one Jew and one atheist, said they found the prayers “offensive, intolerable and an affront to a diverse community” which was 2% Jewish. After their complaint, a Jewish layman, the chairman of a Baha’I temple and a Wiccan priestess were invited to open the board meetings with prayer. That never happened again.

The women brought suit alleging that the town violated the First Amendment’s Establishment clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers “in Jesus’ name.” They said they were not seeking an end to prayer, but requested an injunction for “inclusive and ecumenical prayer.”

Kennedy wrote that “the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment” demonstrating that “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.”

He noted that “The principle audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”

However in Greece, clergy faced the public and had their backs to town’s board. Sometimes they asked citizens to “bow your heads with me as we invite the Lord’s presence.”

Kennedy acknowledged some might find that offensive and “feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront.”

He concluded that “prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.”

Justice Kagan, who is Jewish, said she did not disagree with an earlier Supreme Court case “upholding the Nebraska Legislature’s tradition of beginning each session with a chaplain’s prayer.” However, she found the “Town of Greece’s prayer practices violate” the Constitution’s “norm of religious equality” because it “did nothing to recognize religious diversity...to involve, accommodate, or in any way reach out to adherents of non-Christian religions.” For a decade prayers were “steeped in only one faith.”

“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.”

She said “Assume officials in a mostly Muslim town requested a muezzin to commence such functions, over and over again, `God is greatest. God is greatest. I bear witness that there is no deity but God. I bear witness that Muhammed is the Messenger of God.’” That would go “beyond the constitutional pale.”

She quoted the Court in an earlier case, “`The clearest command of the Establishment Clause,’ this Count has held, `is that one religious denomination cannot be officially preferred over another.’”

Kagan posed another hypothetical case of a woman going to be naturalized where she is asked “to stand and pray with others in a way conflicting with her own religious beliefs. Perhaps she feels sufficient pressure to go along – to rise, bow her head and join in whatever others are saying. After all, she wants, very badly, what the judge…has to offer.”

Justice Samuel Alito commented that Kagan’s objection “is really quite niggling.”

I don’t agree. I find her persuasive.