The combined case of Hobby Lobby v. Sebelius and Conestoga Wood v. Sebelius may be one of the most important religious liberty cases in American history. But the recently decided—but less well known—case Town of Greece, NY v. Galloway should not get lost in the shadows. These cases’ impact on how we manage the intersection of religion and public life may be transformative.
At issue in Greece was the practice of opening town meetings with Christian prayers over a ten year period. Americans United for Separation of Church and State filed a lawsuit on behalf of two citizens (one Jewish, one atheist) objecting to the practice—which they said made them feel alienated and unwelcome. The case was originally decided in their favor, but when appealed to the U.S. Supreme Court, the justices ruled 5-4 in favor of the Town, overturning the lower court’s decision and declaring that sectarian prayer was constitutionally permissible. The author of the majority opinion however, Justice Anthony M. Kennedy, sought to limit the practice to what he called “ceremonial prayers,” to open governmental meetings. But the justices offered a variety of concurring and dissenting opinions, so it is clear that the courts have a long way to go with an issue that may be forever litigated and never completely resolved.
“The Supreme Court just relegated millions of Americans—both believers and nonbelievers—to second-class citizenship,” said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. “Government should not be in the business of forcing faith on anyone, and now all who attend meetings of their local boards could be subjected to the religion of the majority.”
For the Greece decision, SCOTUS relied on a 1983 decision in which the court had ruled that state legislatures may pay for official chaplains and open sessions with prayers. The Kennedy-led majority in Greece believes that the reasoning of this case authorizes the town’s practice. (Underscoring how divided the judiciary and the country is on these matters, the decision in 1983 case was also a 5-4 vote.)
Indeed, Justice Kennedy explicitly rejected the argument that government-sponsored prayers must be non-sectarian. “Respondents argue, in effect, that legislative prayer may be addressed only to a generic God,” Kennedy wrote. “The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones.”
Paradoxically, Kennedy also suggested that even as he thinks the depth of religious expression should not be limited, there also are limits.
“If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort,” Kennedy declared,. “That circumstance would present a different case than the one presently before the Court.”
Justice Elena Kagan, writing in dissent, said the decision will foster majoritarianism rather than respect for religious differences and the rights of individuals. “I think the Town of Greece’s prayer practices violate that norm of religious equality – the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian,” she wrote.
The two Greece residents who brought the suit, Susan Galloway and Linda Stephens, objected to the town board’s practice of inviting clergy to open meetings with prayers that left them feeling unwelcome and alienated. That, Kennedy feels is OK, because if they don’t like Christian prayers, they can step out for the prayer and come back for the meeting. No one is coercing anyone to pray.
But since the board had not required that the invocations be inclusive and non-sectarian, unsurprisingly, town records showed that about two-thirds of the 120 recorded invocations over about ten years contained references to “Jesus Christ,” “Jesus,” “Your Son” or the “Holy Spirit.” And almost all of the prayer-givers have been Christian clergy.
A three-judge panel of the U.S. 2nd Circuit Court of Appeals unanimously ruled in May 2012 against the Town. Judge Guido Calabresi said “a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect.” Nevertheless, the Kennedy-led majority of the SCOTUS saw it differently.
“This ruling is out of step with the realities of modern-day America,” Lynn added. “In a country where pluralism and diversity are expanding every day, a Supreme Court decision that gives the green light to ‘majority-rules’ prayer at local government is exactly what we don’t need.”
Sectarianism Today, Sectarianism… Forever?
One of the first results of the SCOTUS ruling in Greece was the lifting of a preliminary injunction against sectarian prayer imposed earlier this year by a federal judge on the Carroll County, Maryland Board of Commissioners. The judge had essentially put the case on pause until SCOTUS ruled in the similar case of Greece vs. Galloway. In the Carroll County case, a Catholic and a deist said they had been made to feel unwelcome by the Christian prayers offered at meetings of the county Board of Commissioners.
The Carroll County case is different from Greece v. Galloway in one important respect, and will continue despite SCOTUS’ ruling.
“The sectarian prayers being said here are being said by the elected officials themselves, whereas in the Greece case the prayers were said by invitees, usually clergy,” David Niose, legal director of the American Humanist Association explained to The Washington Post. “When an elected official speaks, he or she presumably speaks for the government, whereas when someone else is invited in from the outside it is not the government endorsing the prayers.
Supporters of the sectarian Commissioners might agree with Niose on this point, albeit for very different reasons.
As we previously reported here at Eyes Right, Pastor David Whitney of Anne Arundel County, Maryland was very animated about the prayer issue in nearby Carroll County and the role of the Federal Courts. Whitney said that telling “an elected official that they cannot acknowledge our Lord Jesus Christ, the one to whom all authority belongs, is to deny that the so-called civil government has any authority at all.”
Similarly, a leading national Christian Right political operative, David Lane of the American Renewal Project, has also denounced the preliminary injunction and the judge who issued it—U.S. District Judge William D. Quarles Jr., who was appointed by President George W. Bush.
Mockingly referring to “Emperor Quarles,” Lane wrote, “[u]nelected and unaccountable Judges imposing a false religion of political correctness, multiculturalism and secularism have no right to rule a free people…”
“The pretension and foolishness of the U.S. Supreme — and inferior courts – Court,” Lane continued, “is mind-blowing.”
Lane is widely seen as a behind-the-scenes “kingmaker” who has helped develop the national profiles of major political leaders and 2016 presidential prospects who have demonstrated appeal to the Christian Right. These include Fox News personality Mike Huckabee, Governors Rick Perry (R-TX) and Bobby Jindal (R-LA), and Senators Rand Paul (R-KY) and Ted Cruz (R-TX).
“Let’s decide if America is a Christian or pagan nation,” Lane concluded, “and get on with it.”