Supreme Court Rules On Town Meeting PrayersPosted: May 5, 2014
A divided (5-4) United States Supreme Court ruled today that a small town in New York that opened virtually every single town meeting since 1999 with a prayer expressly invoking Jesus as lord and savior did not run afoul of the First Amendment prohibition against government establishment of religion.
The differences between the plurality, concurring and dissenting opinions in Town of Greece, New York v. Galloway, et al., reflect fundamentally different attitudes toward interpreting the constitution. (They reflect other things as well, but I’m trying to keep this post appealingly brief.) The plurality opinion, by Justice Kennedy, focuses on the long history and tradition in our country of legislative bodies opening their sessions with a prayer, and reflects an understandable desire to avoid having federal and state courts effectively “supervise” the prayer process. Unless government “coerces” citizens to participate in the prayer process, that is, “unless it compel[s] its citizens to engage in a religious observance,” the mere fact that some people attending a town meeting may be offended by a particular prayer because it references a particular religious figure, or because the prayer giver invites attending citizens to rise and bow their heads, does not render the prayer unconstitutional. As Justice Kennedy put it, “offense . . . does not equate to coercion.” (Justice Thomas, who wrote a concurring opinion Justice Scalia joined, made a similar point: “Peer pressure, unpleasant as it may be, is not coercion either.”) Because the pattern of prayers at issue in the case did not meet the plurality’s definition of coercion, it did not violate the First Amendment.
Justice Kagan wrote the principal dissent, invoking themes of religious inclusion, neutrality and equality. She and her dissenting colleagues (Breyer, Ginsburg and Sotomayor) would have held that the Town of Greece, by consistently identifying itself with a particular religion in its opening prayers for such a long period of time, ran afoul of the First Amendment.
I think the following excerpt from Justice Kagan’s opinion sums up the dissenting justices’ position on the issue quite well, and quite eloquently, with a wonderful history lesson to boot:
In 1790, George Washington traveled to Newport, Rhode Island, a longtime bastion of religious liberty and the home of the first community of American Jews. Among the citizens he met there was Moses Seixas, one of that congregation’s lay officials. The ensuing exchange between the two conveys, as well as anything I know, the promise this country makes to members of every religion.
Seixas wrote first, welcoming Washington to Newport. He spoke of “a deep sense of gratitude” for the new American Government-“a Government, which to bigotry gives no sanction, to persecution no assistance-but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine.” Address from Newport Hebrew Congregation (Aug. 17, 1790), in 6 PGW 286, n. 1 (M. Mastromarino ed. 1996). The first phrase there is the more poetic: a government that to “bigotry gives no sanction, to persecution no assistance.” But the second is actually the more startling and transformative: a government that, beyond not aiding persecution, grants “immunities of citizenship” to the Christian and the Jew alike, and makes them “equal parts” of the whole country.
Washington responded the very next day. Like any successful politician, he appreciated a great line when he saw one-and knew to borrow it too. And so he repeated, word for word, Seixas’s phrase about neither sanctioning bigotry nor assisting persecution. But he no less embraced the point Seixas had made about equality of citizenship. “It is now no more,” Washington said, “that toleration is spoken of, as if it was by the indulgence of one class of people” to another, lesser one. For “[a]ll possess alike . . . immunities of citizenship.” Letter to Newport Hebrew Congregation (Aug. 18, 1790), in 6 PGW 285. That is America’s promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming only that they, like anyone “who live[s] under [the Government’s] protection[,] should demean themselves as good citizens.” Ibid.
For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision.
Amen, Justice Kagan, amen. I concur.