RELIGION NOVEMBER 7, 2013
Justice Elena Kagan framed the stakes in Town of Greece v. Galloway, the church-state case that the Supreme Court heard Wednesday, at the very beginning of the oral argument. “Suppose that as we began this session of the Court, the chief justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectator,” she said. “And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, 'We acknowledge the saving sacrifice of Jesus Christ on the cross…' Would that be permissible?”
The lawyer for Greece, New York, a Rochester suburb that allows sectarian prayers before its town meetings, tried to dodge the question by claiming that this was a case about prayers before legislative sessions, which have a long history dating back to the First Congress, and not about prayers in courtrooms or schools. But Justice Antonin Scalia seemed to balk at the concession, suggesting that even openly sectarian prayers in courtrooms and schools might be permissible if they were opened to all religions and if citizens weren’t legally coerced to participate. This position—call it religious supremacism—would represent a dramatic change in the current constitutional relationship between church and state, allowing sectarian prayers in any public setting. And the oral arguments in the Town of Greece case provided the first hint that religious supremacists may have more support among the conservative justices on the Roberts Court than was previously believed.
For the past few decades, the position of the justices in church-state cases can be broadly divided into three categories. First, there are the strict separationists, who believe that any religious expression in public, even historical examples like legislative prayers or “In God We Trust” on the dollar, violates the First Amendment’s prohibitions on establishment of religion. On the Roberts Court, the strictest separationist is Justice Ruth Bader Ginsburg, although even she is willing to make small exceptions for historical religious mottos and traditions, such as “In God We Trust” on currency or “God save this honorable Court,” which opens each Supreme Court session.
Second, there are the partisans of religious neutrality. They believe that government-sponsored religious expression is unconstitutional and that religious expression privately chosen by individual citizens is permissible and that the hard cases involve identifying the line between what’s publicly sponsored and what’s privately chosen in the public sphere. School vouchers, for example, should satisfy the requirement of religious neutrality, since individual parents, rather than government officials, determine whether the money goes to secular or religious schools. Nevertheless, Justice Stephen Breyer, who generally embraces religious neutrality, has voted against vouchers on the grounds that state money shouldn’t go to religious schools even if individual parents make the ultimate choice.
Finally, there are the religious supremacists, lead by Justices Scalia and Thomas, who would overturn cases barring student-led school prayer and would allow public prayers in schools, legislatures, and other government bodies, as long as the students or officials are not actually coerced into delivering the prayers. On this score, Justice Thomas has gone furthest of all, suggesting that the First Amendment’s prohibition on establishment of religion doesn’t bind the states at all—a position that would remove all restrictions on state-sponsored prayer. In other cases, Thomas has suggested that the First Amendment bans only “actual legal coercion”—that is, “mandatory observance or mandatory payment of taxes supporting ministers.” Scalia, too, would define coercion very narrowly. Dissenting from Justice Anthony Kennedy’s 1992 opinion striking down student-led prayer on the grounds that it subtly coerced other students to participate, Scalia said: “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”
What makes the Greece case such a potential blockbuster is that it gives the newer justices on the Roberts Court their first opportunity to show whether or not they share Justice Scalia and Thomas’s very narrow view of what kind of religious coercion is constitutionally impermissible. And yesterday, neither Roberts nor Alito tipped his hand on that point. Roberts seemed inclined to rule narrowly rather than broadly, suggesting that a prayer might be more or less coercive if people were asked to stand, which might reveal who was participating and who wasn’t. As for Alito, he focused on practical questions—such as the Town of Greece's claim that the “public hearings are held at least 30 minutes after the prayer”—a claim that the challengers dispute. Both Roberts and Alito, in other words, gave no clear indication whether or not they would join Scalia and Thomas in tearing down the wall between church and state by defining religious coercion in the most formalistic way.
The future of that wall has long turned on Justice Kennedy, who defined religious coercion more expansively than Scalia and Thomas in the 1992 graduation-prayer case. But yesterday, Kennedy seemed impatient with Greece's lawyer, Thomas G. Hungar, for conceding to Justice Kagan that a sectarian prayer before a Supreme Court oral argument would necessarily be unconstitutional. Kennedy seemed to want more evidence of whether observers would feel more coerced by a sectarian appeal to Jesus Christ than they do by the more non-denominational tradition of beginning each session with the cry, “God save this Honorable Court.”
Many of the justices seemed uncomfortable with the idea of judges deciding whether a particular prayer was sectarian or non-denominational—and the Obama administration disappointed many church-state separationists by filing a brief arguing that lower courts were wrong to review the content of the prayers in the Town of Greece to ensure that they appealed to “heavenly father” rather than “Jesus Christ.” For this reason, it’s possible that the Court will rule narrowly that legislative prayers are fine because of their long historical pedigree, and there is no need to review the content of the prayers as long as all sects are eligible to participate. But it’s also possible, if Kennedy decides this is an opportunity to make clear that he is more concerned about the subtly coercive pressures to pray on children than adults, that the scope of public prayer in America could be significantly expanded.
Regardless of whether the justices rule narrowly or broadly, Justice Kagan, who began the argument so dramatically, also had the most moving summation of the stakes in the case. As a statement of the value of religious neutrality, it deserves to be quoted in full:
Here's what our—our country promises, our Constitution promises. It's that, however we worship, we're all equal and full citizens. And I think we can all agree on that.
And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious team as most of the people in the room do.
And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.
To hear the National Constitution Center's podcast debate on the Town of Greece case, click here.
Jeffrey Rosen is the legal affairs editor of the New Republic.