Government Prayer: Wrong on Any Set of Facts

Picture Credit: Boston Public Library through

The facts about the government-sponsored prayers before town board meetings in Greece, New York, couldn’t have been any worse, as Justice Stephen Breyer aptly summarized them in dissent today in Town of Greece, New York v. Galloway:

during the more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 to 2010), only four prayers were delivered by non-Christians. And all of these occurred in 2008, shortly after the plaintiffs began complaining [and litigating] about the town’s Christian prayer practice and nearly a decade after that practice had commenced.

The facts were bad enough that the Second Circuit Court of Appeals ruled that the town’s practice violated the Establishment Clause because it endorsed a specific religion, Christianity.

Of all the government-prayer cases from around the country that the Supreme Court could have chosen to review, the violations in Town of Greece were the worst. Nonetheless, today the Court upheld the town’s prayer practice in a 5-4 decision written by Justice Anthony Kennedy, thus setting a bad precedent that even the strongest and most unbalanced government endorsements of Christianity will survive court review. Moreover, although the four dissenters disagreed with the majority about the facts of Greece, no Justice defended the principle that government-endorsed prayer is wrong on any set of facts.

The following paragraphs explain how the Justices disagreed about the facts of the case.

Dissenters first. Justice Breyer wrote a short and “fact-sensitive” dissent, for himself only, reminding readers that in Establishment Clause cases the only test he applies is his personal exercise of legal judgment, meaning that on these facts and these facts alone, Town of Greece acted unconstitutionally.

Next, Justice Elena Kagan, in the principal dissent, joined by Breyer as well as Justices Ruth Bader Ginsburg and Sonia Sotomayor, went out of her way to state that, as a matter of principle, she supports legislative prayer and opposes a “bright separationist line” against government-sponsored prayer. In other words, in some sets of facts government prayer is good; in others, it is not. Town of Greece crossed the line because citizens doing business with the government attended these meetings; because the prayers were directed at citizens, not legislators; and because there was so little religious diversity in the town’s prayer practices that the Constitution’s mandate that every religion be treated equally was violated.

Joining the majority, Justice Samuel Alito, outraged that Justice Kagan had falsely accused the majority of “being blind to the facts of this case” in her “really quite niggling” dissent, wrote a concurrence, joined by Justice Antonin Scalia, outlining his view of the pertinent facts. On Alito’s account, town employees who knew (vaguely) that long ago (in 1983) the Court had upheld the constitutionality of legislative prayers in Marsh v. Chambers, one day picked up the Greece Community Guide and randomly started calling whatever churches were listed there in search of volunteer chaplains. It was okay that they never noticed that only Christian churches were listed in the directory because the town was mostly (although not only) Christian and because the “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 government.” If the one, non-Christian house of worship within the town (a Buddhist temple) and the local Jews who worshipped at synagogues in nearby Rochester were forgotten, so be it. Alito denigrated the “demographic exactitude that might be regarded as optimal” by the dissent (which Kagan more positively worded as the “First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”)

The facts didn’t matter at all to Justice Clarence Thomas who, for himself only, wrote that the Establishment Clause does not apply to state or municipal governments, and, joined by Justice Scalia, concluded that the clause is violated only in those coercive circumstances where the government “coerces religious orthodoxy and financial support of religion by force of law and threat of penalty.” That strict standard would have been violated only if Town of Greece had ordered those Jews and Buddhists into local churches or commandeered their property to give to Christian churches, facts that, fortunately, we don’t expect to occur any time soon.

Because of their strict interpretation of coercion and the Establishment Clause, however, Thomas and Scalia refused to join Kennedy, Alito and Chief Justice John Roberts in their specific ruling that Town of Greece’s prayer practice was not coercive. In 1992, Scalia and Thomas dissented from a Kennedy opinion invalidating high school graduation prayers as coercive in Lee v. Weisman. Town of Greece was unlike Weisman, Kennedy wrote, because the prayers were directed at legislators, not the public. Any offense felt by the audience, moreover, was not coercive because “[a]dults often encounter speech they find disagreeable.” Continuing their disagreement with Weisman, however, Scalia and Thomas reiterated that the “subtle coercive pressures that people feel in this case” are irrelevant to the Establishment Clause completely and not, as Kennedy thought, just in this case. The duo refused to join their three colleagues in the coercion analysis.

In the Opinion of the Court, Kennedy, Scalia, Thomas, Roberts and Alito reaffirmed the Marsh precedent with the simple, but misleading, argument that because the first Congress had engaged in Christian legislative prayer, so too could Town of Greece and other contemporary legislative bodies. Asserting that the “decidedly Christian nature of [historical] prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today,” the Court upheld the Christian practice of Town of Greece because it was consistent with historical practice. Ironically, however, in reaching that conclusion, the Court ignored the historical facts, explained in the legal historians’ brief and cited by Justice Kagan, that even when the nation was much more predominantly Christian than it is today, George Washington, Thomas Jefferson and James Madison went out of their way to use nonsectarian language so as not to exclude non-Christians.

In fact, that one word nonsectarian posed an irresolvable problem for everyone involved in the case. Susan Galloway and Linda Stephens, the challengers in Town of Greece, had argued that Marsh required nonsectarian or ecumenical prayers and that the Christian prayers in Greece violated that standard. When asked by the Court at oral argument to draft a nonsectarian prayer, however, their lawyer, Professor Douglas Laycock, had trouble enunciating the nonsectarian standard. Laycock advised the Court that prayers to the Almighty and the Creator would be acceptable. In response to Justices skeptical of that position, he then conceded that atheists and nonpolytheists need not be included for a prayer to be nonsectarian and therefore constitutional.

The nonsectarian drafting exercise opened the door for Justice Kennedy to conclude that the challengers were asking the government to write prayers, monitor prayers, or silence prayers by the chosen chaplains, thus creating new constitutional problems because the “government may not seek to define categories of religious speech.”

Thus, in the end, the two sides were left arguing about what kind of facts make government prayer proper. That is the problem with the case. The majority’s and the town’s side favors one religion, Christianity, over others. The dissent’s and the challengers’ side might favor a confused nonexistent, nonsectarian religion over real religions (polytheists) and nonreligions (atheists). The dissenters might also allow a team of different religious chaplains to be spread over the season, forgetting that the person who shows up for government business hears only the religion of the day. No one emphasized that the Establishment Clause does not allow the government to favor one religion over another, or religion over irreligion, as the practice of legislative prayer, even so-called nonsectarian prayer, always does.