The Great Balancing Act of the First Amendment

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I find that the media is misrepresenting the Town of Greece v. Galloway Supreme Court Case in subtle ways, ignoring the pragmatism of the principles upheld. The subject of this article is to evaluate the Supreme Court’s decision, along with the dissents from the actual opinions published by the court, not from what the media purports.

You can find the Supreme Court’s official and constitutionally authoritative summary and ruling of the case here. I will refer to it continually, and do recommend reading – it’s easy to understand.

Before continuing, let’s have a lesson on the First Amendment. When I refer to what is constitutional, I do not claim higher authority on constitutional law than the very best: the Supreme Court justices. I am merely stating what I find better in line with the ethical spirit of the First Amendment and the separation of Church and State. There are two components of the First Amendment to be discussed:

  • Establishment Clause: “Congress shall make no lawrespectingan establishment of religion…
    • No government body can prefer one religion over the other.
  • Free Exercise Clause:        …or prohibiting the free exercisethereof”
    • Likewise, no government body can prevent the exercise of religion.

The two components of the First Amendment above form the Religion Clause, which is a balancing act of its two aspects. On the one hand, government cannot impose a particular religious belief on citizens. But government also cannot prevent the exercise of religion by citizens. The two come in conflict in a number of unexpected ways which will be covered throughout.  For example, when dealing with citizens in government: the government member cannot impose his/her religious beliefs but is also free to to exercise their religion in government.

In the delicate relationship between the Establishment Clause and the Free Exercise Clause, we must be clear what this entails in Jefferson’s separation of Church and State. As a society, we emphasize that religion cannot influence government on an institutional scale. We forget this also means government cannot influence religion on that scale. Stephen L. Carter, a Yale Law Professor and once intern to Justice Thurgood Marshall, in his book A Culture of Disbelief, warns that  “the American idea is threatened when religious power mixes too intimately with political power…[but] the greater threat comes when the Church is no longer kept merely separate but is forced into a position of utter marginality.” To summarize, government members have every right to bring their religion into government via the Free Exercise Clause, but are not allowed to impose their religion institutionally via the Establishment Clause.

 

On to Greece v. Galloway. In brief, the Town of Greece, New York, had monthly town hall meetings that began with a religious invocation. “From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy” (Kagan 69). After a brief spell to avoid litigation with a Jewish, Wiccan, and Bahai invocation, the Town of Greece returned to using solely Catholic and Protestant prayer service. The Supreme Court has ruled  “that no violation of the Constitution has been shown” (The Court 5), and I will critique their reasoning below.

For the purpose of clarity, here are the opinions published by the Court:

  • Majority opinion (The Court, Justice Alito, and Justice Kennedy): these opinions believe that sectarian prayers in a government assembly are constitutional in principle, “so long as the practice over time is not exploited to proselytize or advance any one, or to disparage any other, faith or belief” (The Court 19). These opinions do not believe that the Town of Greece’s invocations were doing any of those things,  and is thus constitutional. These opinions have no problem with the town “acknowledging the central place that
    religion plays” in their lives (Kennedy 27).
  • Dissent opinion (Justice Breyer, Justice Kagan): these opinions believe that sectarian prayers in a government assembly are unconstitutional in principle. These opinions do believe that the Town of Greece’s invocations were sectarian, and are thus unconstitutional. These opinions do agree with the majority that Americans “are a religious people” and “prayer draws some warrant from tradition in a town hall” (Kagan 73)

What we see clear in both opinions is the idea that opening prayer is an acceptable part of any government body, and does not violate the Establishment Clause of the Constitution. Members of government and the public, both of which are citizens of the United States, have the right to Free Exercise which includes public prayer. The question at hand is whether or not public prayer, following the Free Exercise Clause, can be sectarian and still not “prefer one religion over the other” via the Establishment Clause.

Following the majority opinion, in principle I do not think that sectarian prayer necessarily exploits, proselytizes, or disparages faiths or beliefs and thus is constitutional. Rather, it reaffirms that Americans “are a religious people”. The reasoning is as so: “mature adults… [are] presumably not readily susceptible to religious indoctrination or peer pressure” (Kennedy 22-23). A prayer that calls on the name of Jesus is simply accommodating for those who recognize the divinity of Jesus, who have the right to Free Exercise of their religion in public forum, and who may be more readily prepared to govern when in a spiritual state of consciousness that is satisfactory to them. Likewise, for a public audience such as one in the town hall with Christians will likely feel more comfortable and assured of the government’s responsibility to religious accommodation should their religion be specifically invoked. It will likely not, when used selectively, influence the religious practices of others in a room such as to violate the First Amendment.

When a governing body promotes the same sectarian language or prayers repeatedly however – from the same sects or religion – it is without a doubt in violation of the Establishment Clause. This was the case of the Town of Greece, which for nine years straight, on a monthly basis, used only prayer invocations from Catholics and Protestants. The majority opinion seems to beat around the bush and simply ignore the fact that this cannot possibly be anything but the promotion of one religion over all others. It is unconstitutional, and as one can read for oneself, the arguments the majority opinion fall flat on their feet when reading the dissents. It is excluding those that do not adhere to the values of those prayers and equates those values to the values of civic participation in Greece, New York.

For that reason, sectarian prayers should not always be of the same sect or religion over and over again. Justice Kagan, who dissents, writes: “when one month a clergy member refers to Jesus, and the next to Allah or Jehovah…the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed” (Kagan 19). Here, I agree with the dissent that sectarian prayer is alright so long as the prayer is not exclusively of one sect or religion.

Some may argue that sectarian language should be banned altogether in exchange for inclusive prayer. There is indeed a significant difference in inclusivity from a prayer that calls for shared ethical values or a commitment to the divine than the Lord’s prayer, a Jewish chanting of Sh’ma and V’ahavta, or a Muslim Adhan (Kagan 59-60). That is certainly true and all opinions published agree on the preferableness of inclusive language. However, it comes with an incredible danger for the court to specify exactly what is inclusive and what is not, as well as difficult to justify constitutionally. By banning certain religious invocations and allowing others government would “prevent the excerise of religion’ in the way adherents (who are citizens) would have it, undoubtedly violating the Free Exercise Clause. It would also “prefer one religion over the other” in terms of prayer, clearly against the Establishment Clause. Ironically, totally mandated inclusivity that is specified by the Court would violate the Religious Clause of the First Amendment more then anything else.

That is where I disagree with the dissent, which seems to call for strict impositions of inclusivity on chaplains in public prayer services. Justice Alito’s majority opinion, section II from page 32 to 35, masterfully explains that point. Justice Brewer is right in that Courts should require that government bodies recommend inclusive prayer services, but they should not be mandated for a number of complications Alito addresses:

Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer. In addition, if a town attempts to go beyond simply recommending that a guest chaplain deliver a prayer that is broadly acceptable to all members of a particular community (and the groups represented in different communities will vary), the town will inevitably encounter sensitive problems. Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list?

Justice Breyer does correctly note the House of Representative’s recommendation for inclusivity, and I do think Justice Alito would agree that these would be suitable for the Town of Greece as requirements for a prayer service. Unfortunately, for political reasons, the sake of simplicity, or my assessment being wrong, these recommendations were foolishly not recommended:

“The guest chaplain should keep in mind that the House of Representatives is comprised of Members of many different faith traditions.

“The length of the prayer should not exceed 150 words.
“The prayer must be free from personal political views or partisan politics, from sectarian controversies, and from any intimations pertaining to foreign or domestic policy” (Breyer 55).

 

To conclude, I find that sectarian prayer in government bodies to be perfectly Constitutional and in no way violating the separation of Church and State, as a result of the delicate balance between the Establishment Clause and the Free Exercise Clause. However, these sectarian prayers cannot all be from the same religion at all times, and inclusive prayers should be recommended by the Courts and by government bodies, while not mandated or specified by government bodies. The majority is right to argue against mandated and specified inclusion, and the dissent is right to declare the Town of Greece’s religious prayer services unconstitutional for praying in the same religion. In the plural society America is, religion for better or for worse has its role in public discourse, and we must be willing to accept that.

———

 

Note: I did not discuss the Court’s use of Marsh v. Chambers, the tradition of prayer service as a historic reality, the municipal technicalities of Greece’s selection of clergymen, or the the role of religion in a plural society because I think that has been thoroughly discussed on the internet. For that end, I commend Justice Kagan’s use of Marsh v. Chambers, the entire court’s use of the tradition of prayer service, the dissent’s criticism of Greece’s selection process, and I’m a bit more muddled on the role of religion in plural society. I definitely disagree with Justice Kagan on that point, and somewhat agree with the majority – however, I think American civil religion is rightly withering into a myth.

I also did not discuss the implications of the Town of Greece v. Galloway, but to be flat honest the Court for the most part reaffirmed Marsh and very little has changed. It is useful to analyze what it should have been, rather than the status quo that been preserved, however, and that is what I have done.

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