an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Monday’s Supreme Court decision, permitting sectarian prayers at meetings of city councils, was no surprise. But it is deeply disappointing.
The idea that government must be neutral as between religion and nonreligion has been deeply controversial among the Justices. But the idea that government must be neutral as among religions had not been controversial; both left and right had agreed that government must at least be neutral as among the monotheistic religions. We expected Justice Scalia to somehow wiggle out of his repeated strong statements of that principle. But there was no wiggling. Those statements just disappeared, without a trace or an explanation.
George Washington famously said that America had advanced beyond toleration. Toleration was the practice of one dominant religion tolerating the others. Washington thought that our guarantees of religious liberty put all religions on an equal footing. But Monday’s opinion indicates a return to mere toleration. Christians are the majority in Greece, so they control the meetings, and they can make everyone else submit to a brief Christian prayer service as a condition of speaking to the Town Board. Other religions will be tolerated, but they won’t be respected or treated equally.
The Court said that prayers at government meetings cannot be used to proselytize. But then it said that prayers that spelled out the Christian plan of salvation were not proselytizing. If these prayers were not proselytizing, then nothing short of explicit calls for conversion is out of bounds. And even explicit calls for conversion are acceptable if they don’t happen too often, because the Court also said that occasional violations should be disregarded.
The Court also said that no one is coerced to participate in these prayers. That holding simply denies human experience. Of course we all feel pressure to go along with the group, and especially so on matters that are obviously important to the group. And of course no one wants to irritate the members of the city council just before standing up to ask for something those members can grant or deny.
Seven times in the majority opinion, the Court characterized the prayers, the purpose of the prayers, or the portion of the meeting in which the prayers were offered, as “ceremonial.” Prayers about the saving sacrifice of Christ on the cross are not “ceremonial.” Christians, more than anyone, should be offended by that characterization.
And non-Christians know better. Jesus promises eternal life to believers. He also threatens eternal damnation to everyone who does not, or cannot, believe the story that Christians tell about him. That threat of damnation is implicit in every prayer that talks about the Christian plan of salvation; it is less obvious, but still there, in every prayer that ends in Jesus’ name. To acknowledge this part of Christian teaching is not to criticize it, but to take it seriously. The people imposing these prayers on their fellow citizens, and the Justices upholding that imposition, appear to have no idea just how divisive these prayers are. They alienate citizens from their government and fuel deep resentment of Christians and Christianity.
The Court’s opinion relied heavily on history, giving little weight to the vast increase in religious pluralism. Protestants were more than 98 percent of the white population when the First Amendment was adopted. If a religious practice was controversial among Protestants, they wanted government to stay out of it. If it was not controversial among Protestants, there was no one to raise the issue. What Protestant government officials did among themselves in 1789 is no guide to what government should be permitted to impose on citizens today. Today, people who identify themselves as any form of Christian are only 73 percent of the U.S. population; the non-Christian minority is more than 80 million Americans. The Court should stop pretending that they are too few to matter.
One limit to the opinion arises from the Town’s dubious claim that anyone who volunteers can give the prayer at Town Board meetings. That claim was a sham; this alleged equal-access policy was never written down and never publicly announced. Except for a few news stories when the lawsuit was filed, no one in Greece knew about this alleged policy.
But the Court treated that sham of equal access as real, and appeared to require it. The town need not reach beyond its boundaries to recruit guest chaplains from religious minority groups, “so long as the town maintains a policy of nondiscrimination” within the town limits. So anyone can give the prayer, and “government must permit a prayer giver to address his or her own God or gods as conscience dictates.” If non-Christians start volunteering to give the prayer, this decision may yet disappoint conservative Christians intent on imposing their own religious practices at every civic event.
There are better solutions for both sides. Let those who wish to pray meet privately before the meeting begins, and they can pray however they choose, without protest or conflict. Or if there must be prayer at public meetings, remind the guest chaplains that they are praying for citizens of many faiths and of none, and that their prayers should be broadly interfaith. Clergy know how to do that; the House and Senate chaplains do it every day. But no faith, however numerous, should be allowed to impose its own religious practices on everyone else. And that is what the Court has approved.
Douglas Laycock represented the plaintiffs in Town of Greece v. Galloway. He is the Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies at the University of Virginia. He may be reached at firstname.lastname@example.org.