Monday, May 05, 2014

Supreme Court Upholds Sectarian Invocations At City Council Meetings

The U.S. Supreme Court today handed down a 5-4 decision in Town of Greece, New York v. Galloway, (Sup. Ct., May 5, 2014), upholding the constitutionality of non-coercive sectarian invocations at city council meetings. Justice Kennedy's opinion-- minus one section of it-- constituted the opinion of the court.  Chief Justice Roberts, and Justices Alito, Scalia and Thomas joined with Justice Kennedy in making this the prevailing opinion.  Much of the opinion is devoted to refuting respondents' argument that the Establishment Clause requires legislative invocations to be non-sectarian:
An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.... To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of nei­ther editing or approving prayers in advance nor criticizing their content after the fact....
Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. 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. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian....
Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh....
Finally, the majority disagrees with the view taken by the Court of Appeals that the Town of Greece violated the Establishment Clause by inviting predominantly Christian ministers to deliver the invocations:
The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing....
One section of Justice Kennedy's opinion-- Part II-B-- was joined only by Chief Justice Roberts and Justice Alito.  This section amounts to an extensive argument as to why the city council invocations at issue were not coercive:
The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing....
The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar ges­tures by the public. Respondents point to several occa­sions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive....
In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.....
An opinion by Justice Thomas, joined by Justice Scalia, explained their refusal to join Part II-B of Justice Kennedy's opinion. They argued that the Establishment Clause should not be seen as being applicable to the states. The then added that even if the Establishment Clause is seen as incorporated against the states, "the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding." In their view: "to the extent that coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts-- not the "subtle coercive pressures" allegedly felt by respondents...."

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, emphasizing the difference between city council meetings and state legislatures, and arguing that the Town of Greece has violated the constitutional requirement of religious equality:
Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.
Justice Kagan added:
[T]he not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike.....  Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans.... They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present  potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” 
Justice Breyer also filed a separate dissent.  Justice Alito (joined by Justice Scalia) also wrote a concurrence directly responding to Justice Kagan's dissent.  CNN reports on today's decision.

4 comments:

Eric Hurley said...

Like all other things regarding religions, Unbelievable. . So in making sure the prayers don't explicitly endorse a particular religion, the state would effectively endorse a particular religion?!? How about not endorsing religion at all. Pray at your leisure, not the state's.

Robert V. Ritter said...

The Town of Greece decision eviscerated the neutrality component of the Establishment Clause. Now one religion -- namely Christianity -- may be preferred over other religions, as well as, nonbelief. Justice Scalia is celebrating tonight! And James Madison and Thomas Jefferson are rolling over in their graves.

Robert V. Ritter said...

Justice Kennedy wrote in Town of Greece v. Galloway: "Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions.” Slip op. at 19.

Not true. Absolutely false. As co-counsel with Mike Newdow in Newdow v. Roberts (challenging the religious practices of the 2009 presidential inaugural ceremony) -- representing over 250 individuals and nonprofits -- I can say with certitude (just as Peter Eliasberg said during oral arguments in Salazar v. Buono (2010) that you won't find a Christian cross in a Jewish cemetery) that recitation of Christian prayers is NOT part of the heritage of nonbelievers and other nonChristians.

From this, I conclude that the Town of Greece decision is a fraud perpetrated by the five conservative Roman Catholic justices in furtherance of Christian dominion.

Unknown said...

I found this video at the WSJ which clearly shows at the minimum, the main audience is NOT the council, but the audience. When the priest stands at the lectern, he faces the audience, not the council.

See for yourself.

http://live.wsj.com/video/video-of-prayer-at-heart-of-supreme-court-ruling/319CD57D-B4F4-4180-B00D-23D9B40A4922.html#!319CD57D-B4F4-4180-B00D-23D9B40A4922