There Is Really Only One Issue in Town of Greece v. Galloway

The Supreme Court heard oral argument in Town of Greece v. Galloway last week. The case asks whether it is constitutional for a small town to open its town council meetings with prayer.

A lot of ink has been spilled over this case, including on this site. I wrote about the case when the Court first took it, on May 30, and Vik Amar and Alan Brownstein wrote about the oral argument last week, here, on November 8 and also earlier on June 7. The more I think about this case, though, the more I come to the conclusion that it turns on a single factual question: Can there be, in 21^st Century America, such a thing as a “nonsectarian” prayer? The short answer is, “No way.”

The Supreme Court oral argument in the case was riddled with nonsense, as the lawyer for the town tried to defend the practice of reciting the largely Christian prayers, and, inexplicably, the lawyer for the two women, one of whom is an atheist, who had brought the case argued that such prayers are fine so long as they are “nonsectarian.”

Wouldn’t you expect an atheist to argue that such prayers were unconstitutional, period? Was their only objection to the mention of “Jesus Christ?” It appeared that their lawyer, Professor Douglas Laycock, was attempting to thread the needle between existing case law, like Marsh v. Chambers, which upheld “nonsectarian” prayers in state legislatures and by extension, Congress. This approach was lawyerly to be sure, but shortsighted. His clients deserved more vision and passion from their advocates.

The idea of “nonsectarian” prayer has crashed onto the shoals of our country’s religious diversity, and his clients would have been far better served if he had focused on the facts of American society, rather than what is now indefensible case law.

What Does “Nonsectarian” Mean? Importantly, Not “Monotheistic”

A typical definition of “nonsectarian” is “not affiliated with or limited to a specific religious denomination.” Therefore, for a prayer to be truly nonsectarian, it would not be related to a specific religious tradition or set of beliefs. The town, and amazingly the atheist’s attorney, bent themselves into pretzels trying to explain how the monotheistic prayers in Greece, NY, are actually “nonsectarian.”

Laycock suggested that somehow invoking “The Almighty” would be permissible, because, he suggested, that would be nonsectarian. Justice Scalia, plainly angling for prayer by government throughout the argument, then prompted an offensive exchange on whether “devil worshippers” worship the “Almighty.” His very use of “devil worshipper” shows the intellectual incoherency of his position.

First, there are religious sects who do worship the devil, but the majority call themselves Luciferians or Satanists (not to mention other smaller groups), not “devil worshippers.” Second, can you imagine anyone at the argument or in the briefs referring to Christians as “Christ worshippers?” The very formulation of the phrase is disrespectful. But then you might ask, why would Scalia be disrespectful to those who worship Satan. Third, Scalia recently and famously said in print that he, as a Christian, believes in the existence of the “devil,” so this coy comment hearkened back to his own beliefs against the devil. If you can’t ask the question without insulting some believers, either don’t ask the question at all or realize that your position is unsustainable.

Instead of reformulating Scalia’s question to make it less offensive, Laycock jumped right in by trying to shoehorn Luciferians or Satanists into Christian language. Ultimately, Scalia’s question was a softball. He chose an anti-Christian faith that is monotheistic. He left to the side the Hindus, Buddhists, pagans, and the atheist Respondent right in front of him. The exchange itself shows how hopeless it is to craft in today’s society a concept of “nonsectarian” that shoehorns Christian observances into any legitimate meaning of “nonsectarian.”

The exchange left out all of the non-monotheists, whether they are Buddhist, Hindu, polytheists, or atheists. Before anyone starts arguing that such prayers could cover the vast majority of Americans, so it’s all good, I would point out that there are roughly 10 million Hindus and Buddhists in America, when you take them together, and a growing segment of atheists. Those are not small numbers, and such a sizable portion of American society should not be routinely excluded and marginalized by unnecessary government-backed prayer. And, even in little, isolated Greece, NY, these growing sets of believers are present, as the Respondents in this case prove.

There may have been a time, before mass immigration from all over the world, when it was not incoherent to talk about “nonsectarian” prayer as being monotheistic prayer (assuming that you set aside all of the Native American believers who predated the Europeans). The religious make-up of most of the country, once again, discounting the Native Americans, was Christian or Jewish. Those days are long gone, and never were the halcyon days of the unified prayer advocated by the Alliance Defending Freedom representing the town, as Massachusetts Puritans killed Quakers and Baptists for their beliefs, Pennsylvania Quakers forbade non-Quakers from holding office, and early American governments and people treated the Indians as non-citizens who had no rights. Government-sponsored prayer even then was an exercise of hegemony, and it is geometrically more offensive now.

The Supreme Court Should Rest Its Decision on the Facts

The religious diversity of the United States is extraordinary. We should celebrate our achievement in adhering to the absolute right to believe what one chooses; our embracing religious liberty as a nation, and the co-existence, here in America, of so many believers who do not share the same religious worldviews. That we have no history of religious wars is truly remarkable.

The Court must choose one of two paths in deciding Town of Greece. First the Court might obfuscate the facts and contort “nonsectarian” prayer to mean monotheistic prayer, while it fails to acknowledge what makes America great, its peaceful, teeming diversity. That would be intellectually and morally bankrupt. Second, and alternatively, the Court could frankly acknowledge the fact that there is no prayer at this point in American society that is nonsectarian. There are only sectarian prayers and, therefore, the government must get out of the prayer business entirely.

It is not that prayer must be solely a private, secret activity. Believers have the First Amendment right to express their religious beliefs in the public square, and they regularly do. Turn on your television, read the newspaper, and boot up your computer. The question in the case is, instead, whether certain believers can co-opt the government to carry their message to the American people. The correct answer is that they may not, because the government must be meaningfully neutral as among all religions, and no religion at all. The Town of Greece must serve the gutsy Respondents in this case just as much as the Christian clergy who delivered one Christ-centered prayer after another to preface town business as they sat in the audience.

Justice Kagan seemed convinced by the argument that the prayers were unconstitutional, but then she expressed concern that the Court’s rulings in this arena cause confusion, or that they are interpreted as anti-religion. First, the answer to confusion is clarity, and overruling Marsh v. Chambers and getting the government out of the prayer business would be clear as a bell. Second, the anti-religion point is a public relations ploy of those invested in casting this as a “Christian country” and what they want her to believe. Yet, forbidding government sponsorship of prayer is not anti-religion. Rather, monotheistic prayer is anti-religion, and pantheistic prayer is anti-religion, and atheist “prayer” is anti-religion.

How the Decision in Town of Greece Should Begin

Here is where the Court’s opinion in this case should start: “The signal achievement of the First Amendment in the United States is the ever-growing diversity of religious believers and groups. Our shores have been a haven for any and all believers. And in the context of this diversity, the United States has not been striven by religious civil wars. Our one civil war was over the ugliness of slavery, not a war between religious factions fighting for hegemony. There are tens of thousands of sects in the United States, with Americans freely moving from one to another and from belief to nonbelief or the reverse, which is fostered by the First Amendment’s absolute right to believe whatever one chooses. We must, in all honesty, acknowledge the fact that there can be no such thing as a ‘nonsectarian’ prayer in the context of this extraordinary diversity of believers. And we refuse to pretend anymore that American society can be accurately described in one word, such as “monotheist,” or that appeasing a majority of believers is in the spirit of the First Amendment’s highest ideals. Instead, we embrace the rich diversity of this great country, and hold that the Establishment Clause does not permit the government to deliver prayers.”

If the Court holds otherwise its Justices will simply be kicking the can down the road.