On Monday, May 5, 2014, the Supreme Court issued their decision on Town of Greece v. Galloway. Five conservative justices (Alito, Kennedy, Roberts, Scalia, and Thomas) voted to allow legislative prayer, that is, to allow lawmaking bodies to open their sessions with a prayer.
While I don’t agree with this decision, as far it affects a state legislative body, it probably will have little effect. However, this Supreme Court ruling also allows other bodies such as county commissioners and city councils to open their sessions with a prayer.
The majority opinion was written in two parts, one written by Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito, the other written by Justice Clarence Thomas, joined by Justice Antonin Scalia.
In 1989, in Allegheny County v. Greater Pittsburg ACLU, Justice Kennedy wrote for the Supreme Court that “[Government] may not coerce anyone to support or participate in religion or its exercise.”
In the current ruling, Kennedy restates that opinion, adding that the prayer in this case does not constitute religious coercion. Kennedy wrote, “The analysis would be different if town board members directed the public to participate in the prayers,” or if they “singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”
Kennedy also says, “[a] practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.”
When a prayer is given by someone before the start of a session of a state legislative body, few people, other than the elected officials and reporters are present. Contrary to this, when a session of the county board of commissioners or a city council is held, there are generally a number of people in the room either interested in what will happen or who have business to bring before the county board or city council.
Frequently, when these prayers are begun, the person doing the invocation will start with words like, “please stand for the invocation,” or “please bow your heads.” Those who remain seated for the prayer or who hold up their heads can be clearly noted by others in the room.
No reasonable, rational county board member or city council member will comment on those not taking part in the prayer. But who can tell if they have not made mental notes about who prayed and who didn’t?
If I have a request to bring to my city council, will I be willing to chance a denial by not praying or at least making it look like I’m praying? It may not be that any member of the city council is saying, “You must be a believer to get my vote,” but the petitioner might think they must show alignment with practices suggested by the board.
Justices Scalia and Thomas, in their separate opinion, go even further. They state that religious coercion is banned only when it is the “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” This means that Scalia and Thomas consider it coercion only if the government is threatening to fine you or jail you for refusing to pray. Up to that point, these Justices think lawmakers have a free hand to do whatever they want.
Justice Thomas goes further yet. He states that the Establishment Clause is “best understood as a federalism provision” or that the separation of church and state only applies to the federal government.
It will take some time for local county boards and city councils to decide what action, if any, they will take. There will be some that will immediately institute opening prayers because they think they the Supreme Court has given them right to do so. Others will take a more cautious course and watch what happens around them. Some will take a rational approach and continue to see these boards and councils as secular bodies and avoid instituting opening prayers. The question then becomes, how much pressure will the citizen majority put on these bodies to institute opening prayers. Since that majority is most likely to be Christian they will probably be pushing for opening prayers praising Jesus.
There will be a renewed effort by Christian conservative groups to allow school officials to conduct prayers at graduations, sporting events, or even on a daily basis over the public address system. The arguments presented by the five prevailing justices do not bode well for challenges to these actions brought before the Supreme Court in the future unless the nature of the Court itself changes.
At some point, a community will have a majority on its city council that is non-Christian, and many Christians will sit in the audience wondering what to do when they are asked to “Praise Allah,” or “Thank Ganesh, the God of Success.”
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