A narrow Supreme Court decision on Monday has been hailed as a big win for religious freedom, as reported by Reuters:
In a decision that is likely to guide how local governments throughout the United States handle the question, the court said on a 5-4 vote that officials in the town of Greece did not violate the law when picking prayer-givers, who were overwhelmingly Christian.
Even the plaintiffs challenging the practice in Greece, a Rochester, New York, suburb of 100,000 people, conceded that some types of nonsectarian prayers are permitted under the Constitution. The difficulty facing the justices was how to decide how courts should consider when a prayer could violate the First Amendment calling for separation of church and state.
The court was divided along ideological lines, with the conservative wing of the court saying the prayers were acceptable, while the liberal justices said the practice violated the First Amendment.
Justice Anthony Kennedy, the court’s swing vote, wrote the majority opinion, saying that the town’s prayers are consistent with the high court’s 1983 precedent in a case called Marsh v. Chambers. That case allowed prayers before legislative sessions based in large part on the historical nature of the practice.
Although the policy in the town of Greece does not embrace a particular religion, in practice all members of the public who gave a prayer were Christians until some residents filed suit in 2008.
Kennedy wrote that public prayers need not be nonsectarian.
“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,” Kennedy wrote.
An awful lot of these epochal decisions boil down to a battle for the heart and soul of Swing Justice Anthony Kennedy (that really should be his official title) but his reasoning here seems sound enough. The path of least government intrusion against religious freedom clearly lay with overturning the appeals court decision against the town of Greece, whose prayers before meetings clearly did not constitution the government’s establishment of an official religion.
As the Supreme Court’s decision notes, the prayers at these town hall meetings were “given by clergy selected from the congregations listed in a local directory,” and while the program was officially open to all creeds, “nearly all of the local congregations are Christian; thus nearly all of the participating prayer givers have been too.” In his concurring opinion, Justice Samuel Alito notes that even if the town of Greece is lumped in with its entire county, which includes the city of Rochester, only 3 percent of county residents with a listed religious affiliation proclaim themselves to be Jewish, “and for other non-Christian faiths, the percentages are smaller.”
Kennedy points out that the district court ruling overturned by the Supremes “found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity.”
Alito mildly chastises the town council of Greece for not reaching a bit outside its boundaries to include the Rochester synagogues where its Jewish residents worship on the list of invited clergy, but he characterizes this as the sort of very minor complaint upon which much of the Court minority’s dissent rests. He also writes of the difficulty in designing a truly “non-sectarian” prayer that would be completely acceptable to the members of every religion practiced in the United States, whose very diversity and inclusiveness make its religious tapestry a most complicated and colorful weave. It is perverse to suppose that the First Amendment should then be interpreted as a gag order against speech the government decides is not sufficiently diverse.
In other words, there is nothing structurally exclusionary about the program, and the Court majority observed that it was not oppressive against non-Christians in practice:
The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation’s heritage and tradition. It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens.
Furthermore, the principal audience for these invocations ins not the public, but the lawmakers themselves. And those lawmakers did not direct the public to participate, single out dissidents for opprobrium, or indicate that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. Respondents claim that the prayers gave them offense and made them feel excluded and disrespected, but offense does not equate to coercion.
That sounds like a slap against the entire modern culture of hyper-sensitivity, in which “offense” is entirely in the mind of the offended. It doesn’t matter what the speaker means, or what the historical context of his speech might be, if someone with a bit of political or legal pull declares themselves insulted, and calls for silence.
This is also a decidedly “conservative” decision, given the emphasis it puts upon historical precedent and common-sense understanding. Justice Alito, who observed that the authors of the First Amendment certainly didn’t seem to think chaplains offering prayers at the beginning of legislative sessions were a violation of it, pronounced himself “troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative proposals” – in other words, the liberal justices’ tendency to cook up fanciful scenarios that have nothing to do with practices in the town of Greece, or anywhere else in America, such as a polling place conveying “the expectation that citizens wishing to vote make the sign of the cross before casting their ballots.”
Alito worried that some will interpret the liberal justices’ dissent as a warning that Monday’s decision would lead “to a country in which religious minorities are denied the equal benefits of citizenship,” a train of thought he described as going “far astray” from what the majority actually ruled. That’s another rebuke to the cult of perpetual outrage and its insistence that American society should be fenced in until there are no more hiding places for their bugbears and hobgoblins.