The overlords of today’s secular enterprise want the role of religion displaced from public life. On Monday, the Supreme Court handed down an important decision that works against the goals of the naked public square, instead helping stake out religion’s value to both individuals and communities.
In Greece v. Galloway, the Supreme Court ruled 5-4 to uphold the rights of citizens of Greece, New York to convene its municipal meetings in prayer.
Using a line of argument that’s become common in the angry secularist lobby, citizens complained that prayers before city meetings violated the Establishment Clause of the U.S. Constitution. So citizens brought suit wishing not to banish prayers, but to make them more “inclusive” and “ecumenical.”
But in Justice Anthony Kennedy’s majority opinion, this line of argument requires the government to play the role of theological referee by parceling out what it considers appropriate and inappropriate standards for public prayer. According to Kennedy,
It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.
The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.
Finding the practice of legislative prayer historic and therefore constitutional according to the Marsh test, he also refuted claims that attendance at an event where a ceremonial prayer is offered is offensive, coercive, or signals one’s acknowledgment and participation in divine activity. As anyone knows, public participation entails the risk of offense, something our society runs from instead of embracing as a tenet of pluralism. According to Kennedy: “Offense, however, does not equate to coercion,” he wrote, against the respondents’ claim that public prayer excludes and disrespects those who don’t hold to religious belief.
Greece is a win for people of all faiths; even a win for cranky and easily offended secularists. Most importantly, it’s a win for freedom and vibrant pluralism.
As Kennedy writes,
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. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.
Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.
To Kennedy’s thinking, ceremonial prayers help facilitate “tolerance” toward neighbor and “devotion” to the shared goals of our society. As he writes, “These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”
So, yesterday, religion and the free exercise thereof scored a win. Religion isn’t just idiosyncratic hocus pocus, but is, rather, evidence that “many Americans deem that their own existence must be under stood by precepts far beyond the authority of government.”
In the Supreme Court’s Greece decision, that important precept was affirmed, and we’re a more religiously free America because of it. But yet an even bigger case awaits its final decision: Hobby Lobby v. Sebelius. It would be imprudent to base the outcome of the Hobby Lobby case on today’s Greece decision, because the two are very different . But it is perhaps interesting to note that Justice Kennedy’s language in Greece adopts an argument that the government lacks the capacity to play the role of theological referee — an argument advanced by Hobby Lobby. Kennedy seems to suggest that the domain of the transcendent is an important marker to both individuals and communities. But the question is: Does it extend to business? For that, we will have to wait and see until June.
Andrew Walker is the Director of Policy Studies for The Ethics & Religious Liberty Commission.