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:

Despite 5/4 split in Greece v Galloway, all 9 say clergy may (sometimes) recite sectarian prayers at govt meetings. No Jeffersonians here.
— Dorf on Law (@dorfonlaw) May 5, 2014

(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.