Monday, May 12, 2014

Is Nonsectarian Prayer Really an Oxymoron? Town of Greece Part 1

By Michael Dorf

This will be my first post on last week's SCOTUS ruling in Town of Greece v. Galloway. I realize I'm a bit late to the party, so I'll try to make points that I haven't seen elsewhere on the internets. Today's post will focus on nonsectarianism and my next Town of Greece post (tomorrow, absent breaking news) will focus on an argument made by Justice Thomas for unincorporating the Establishment Clause (so that it would limit the federal government but not the states).

As readers undoubtedly are aware, in Town of Greece, the SCOTUS upheld the practice of prayers before town board meetings in the Town of Greece (near Rochester, NY). Although the case was decided by a 5-4 margin, there was actually a fair bit of agreement among all nine Justices, which led me to tweet the following the day the case was handed down:

(If you're reading on a device or with a program that can't handle embedded tweets, that says: "Despite 5/4 split in Greece v Galloway, all 9 say clergy may (sometimes) recite sectarian prayers at govt meetings. No Jeffersonians here.")

Put less succinctly, there was agreement on the following propositions:
1) It's permissible for a government body to invite clergy to provide benedictions at the beginning of that body's public meetings: and
2) It's even permissible for the invited clergy to say prayers that are thoroughly sectarian.

The disagreement between the (conservative) majority and the (relatively liberal) dissent concerns what steps the government body must take to mitigate the sectarian nature of the invocations. The dissent suggests that such mitigation can be accomplished through some combination of outreach to people with a wide range of beliefs and admonitions to the speakers. The majority says that very limited outreach suffices.

Here I want to focus on point of agreement 2). Although Justice Kagan (for the liberals) says that "priests and ministers, rabbis and imams give [inclusive] invocations all the time," she does not say that a sectarian prayer is constitutionally impermissible due to its sectarian nature. Instead, she appears to say that a government body discharges its duty to the Establishment Clause so long as the body tells its chaplains to "speak in nonsectarian terms, common to diverse religious groups," even if any particular chaplain then goes off script by speaking in sectarian terms. (I say "appears" because the dissent's view is highly fact-sensitive.)

Justice Kagan is right that clergy commonly give what most audience members regard as nonsectarian invocations, referring to "Divine Providence", saying "God bless" this or that, or talking about "our Heavenly Father", rather than speaking the argot of particular faiths by, for example, invoking the Trinity or the Divinity of Christ. But as Justice Kennedy (for the majority) and Justice Alito (concurring) rightly respond, while these formulae may be "nonsectarian" in the sense that they don't speak in the language of any particular sect, they are sectarian in the sense that they exclude polytheists and atheists (and perhaps others).

The majority says that because truly nonsectarian prayer is an impossibility anyway, sectarian prayer is permissible. I'm not sure why that's the right conclusion. One might say that because truly nonsectarian prayer is impossible, no government-organized prayer is permissible. But the Court crossed (or perhaps burned) that bridge in Marsh v. Chambers.

Although I agree with the majority that the ostensibly nonsectarian prayers that Justice Kagan has in mind are not really nonsectarian, I'm not sure I agree that nonsectarian prayer is impossible. Consider two models.

(1) On most Friday nights, my family attends a community vegan dinner prepared by a local couple. Their faith traditions appear to be some mix of Jewish, Christian, and Hindu, and the crowd usually includes people from those faiths, as well as a few Buddhists, Muslims, and a fair number of atheists, agnostics, and unaffiliateds. The hosts like the group to take a moment before each meal for reflection followed by the following joint statement: "Blessings on the meal." This can mean whatever anyone wants it to mean and while I understand the complaint that when one waters down a "blessing" to offend no one it becomes a bland nothing, the fact is that this statement does have the effect of solemnizing the occasion.

(2) A quite different route--although one obliquely suggested by the various opinions in Town of Greece--would be to permit even quite sectarian prayers, but to take steps to make clear that whoever is giving the prayer is praying on his or her own, with audience members welcome to join in or not. Here's an example: "I pray to [Allah, Jesus, Vishnu, whomever] that these town board members be granted the wisdom to know which zoning variances to approve and which to disapprove, for I believe that there is no wisdom except that which comes from you, o [Allah, Jesus, Vishnu, whomever]."

Now, it still might be objected that it's no business of government to be inviting people to give prayers at the start of government business, but I want to bracket that objection. My point here is simply that the conceptions of nonsectarianism on offer in Town of Greece are too limited.

10 comments:

Joe said...

If we want to make Kagan's dissent the rule, per some critics, we can tweak it a bit. Her overall point should not be missed. The result here was clearly sectarian in a way that favored a certain breed of Christianity (the non-separatist type at least).

The question is what should be the policy. Complicated question in some fashion in details but even the plurality spoke out of two sides of its mouth there in a fashion. It was concerned about parsing content and then set forth limits (like disparaging) on content.

I think the OVERALL practice should be seen as non-sectarian. One way is to provide prayers that are on the whole inclusive (there is no way this will be 100% possible, but that's like saying we can't have police treat suspects in a totally non-coercive way, so why try?). Or, do a better job inviting more people. Or, as you suggest making it more personal -- Kagan flagged how the officiants here seemed like they were talking to a flock at church.

David Ricardo said...

Two points here.

One is that the majority apparently affirmed the rule that not only can the prayers be sectarian, they can be consistently and near totally sectarian. The facts in the case in Greece fir that model.

Two is that the majority totally failed to recognize the coercion impact. Unlike a legislature, citizens who wish to conduct business with a local governmental body must appear before that body in most cases. By subjecting those citizens to sectarian prayer the government is coercing those citizens into participating in sectarian religious exercises. And that of course, not the exercise of the religious rights of the members of the governmental bodies, is the purpose of the prayer services.

Finally we look forward Mr. Dorf’s comments on the ‘Unestablishment Clause” that apparently exists in the minds of Justices Thomas and Scalia. In their world the Establishment Clause only “probably” prohibits establishment of religion by Congress. But more important is their view is that the purpose of the Establishment Clause was not to provide for freedom of religion but to allow state governments to establish religion and to forbid Congress from interfering with the establishment of state government religions. It seems that most of the scholarly legal community has been willing to let this absurd position go unchallenged. One hopes that Mr. Dorf will use his Forum to thoroughly and totally discredit this position, a position that is so lacking in legal, historical or logical basis that it calls into question whether or not those Supreme Court Justices who espouse such a doctrine are fit to hold any judicial position.

And in case anyone thinks this is mere conjecture, it should be noted that a group of legislators in North Carolina, including the Majority Leader of the House introduced legislation that would declare that the Establishment Clause did not prevent North Carolina from establishing a state religion and that Federal courts had no jurisdiction on ruling on any religious issues within a state. Republican Presidential candidates consistently state that Justices Scalia and Thomas are models for whom they would appoint to the Court. If there is a Republican in the White House the nation is really only two or three Justices away from this view becoming law.

Joe said...

The whole 1A btw was a federalism measure in part. Jefferson, e.g., supported libel actions under state law. The Alien and Sedition Act was opposed in part as a violation of the 10A. But, if we are going to got Thomas' route, I look forward to the federalism reading of the 2A where it is to protect state power, not individual liberty directly.

David Ricardo said...

While A1 does specifically refer to the federal government, notice that almost all of the other rights protected by the Constitution are not federal government specific but provide rights independent of the level of government.

If one adopts the Thomas/Scalia approach about the A1 then one must conclude that the framers wanted to deny the federal government the authority to restrict freedom of speech, freedom of the press, freedom of religion etc but also not only wanted each individual state to have the right to restrict speech, deny religious freedom and completely control and censor the press and that A1 was put in place to assure state and local governments would have those rights. The position would also render the right to “equal protection” ineffective in many cases.

The fact that such a position is not only not supported by any historical record but in fact would render the freedoms in A1 effectively inoperative makes such a position ludicrous, a characteristic that must apply to those who espouse it as well.

Evin Terna said...

"Blessings on the meal." This can mean whatever anyone wants it to mean and while I understand the complaint that when one waters down a "blessing" to offend no one it becomes a bland nothing, the fact is that this statement does have the effect of solemnizing the occasion. cheap fut coins | ultimate team coins | Buy The Elder Scrolls Online Gold | fifa ut coins

Evin Terna said...

"Blessings on the meal." This can mean whatever anyone wants it to mean and while I understand the complaint that when one waters down a "blessing" to offend no one it becomes a bland nothing, the fact is that this statement does have the effect of solemnizing the occasion.
fifacoinshome.com

Shak Olreal said...

One way is to provide prayers that are on the whole inclusive (there is no way this will be 100% possible, but that's like saying we can't have police treat suspects in a totally non-coercive way, so why try?). Or, do a better job inviting more people.

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