Town of Greece v. Galloway – The “Christianization” of Local Government?

by / Thursday, 08 May 2014 / Published in Religious Freedom

 The Supreme Court this week ruled that prayer given by clergy persons at a monthly town board meeting were acceptable under the Establishment Clause of the U.S. Constitution.  This ruling came despite the fact that the vast majority of the prayers were given by Christian ministers, invoking the name of Christ and a general Christian perspective.  Indeed, in the first eight years of the prayer program, only Christian ministers prayed.  
This Christian monopoly was due in part to the fact that clergy were drawn exclusively from congregations within the town limits, the vast majority of which were Christian.  After the program was criticized for its lack of diversity, the town council invited a Jew, a Bahai’, and a Wiccan to pray.   But large majority of the prayers continued to be offered by Christian ministers.  What follows are reflections on the decision, inspired by, and incorporating in part, dialogue with on-line friends, including Mark Walker and Jason Miller.    

In his opinion for the majority, Justice Kennedy wrote: “ceremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define.” (Greece, p. 17)
I basically agree with this idea. But I am concerned that the case itself will serve as precedent to move beyond a mere recognition of a power higher than the government, and serve as an excuse for “Christianizing” local governments.
Some say that they do not worry too much about “Christianizing” local government since the ACLU, AU, and other left-wing groups will continue their hyper-vigilance in trying to remove religious references from public life. Others suggest that the recognition of the Creator in public goes back to our founders, who saw the necessity of maintaining a certain reverence in our public consciousness, something we have lost sight of today.
But I am concerned that Kennedy’s ruling will go beyond the mere recognition of a power higher than the state.  Rather, it will allow whatever position is dominant in a local community to “color” or even dictate the religious atmosphere that will pervade in a particular community. This result flows, I believe, from Kennedy’s “coercion” Establishment Clause test.  This standards says that the Constitution is only violated if someone is coerced in his or her religious beliefs or actions.
Kennedy overlooks, in my view, the power of state endorsement to marginalize outsider religions, and to turn those with minority religious beliefs into second class citizens.  The endorsement test was the O’Connor standard, who said that the government should not put the weight of its approval or endorsement behind a particular religion.  I believe that this standard expressed a very appropriate constitutional concern.  O’Conner is gone, however, and I think we have just seen the first move toward victory of the coercion test.
For many of us, this is a troubling day for Establishment Clause jurisprudence.  One must consider the impact of allowing overtly sectarian and denominational prayer to have pride of place and official state endorsement in our public square. The result will go far beyond acknowledging a Creator to which the state is subject, and will quickly turn into defining the “right” kind of religion in a community. When the founders spoke of God and Creator in our public documents, they spoke of Him in His publicly accessible, natural law sense; not in the biblical, divinely revealed sense that most modern Christian prayers assume. If one could construct a truly open public space and moment, where all religions could truly and freely express their public faith, that might be one thing. But the situation in Greece did not, in my opinion, meet that standard. Indeed, given demographics and the unequal distributions of religions in various parts of the country, in most places such a forum would be impractical, if not impossible.
The decision is perceived differently, of course, by those who are in favor of some kind of “Christian America” model.  They view this result as a great day for Establishment Clause jurisprudence, as they see the Court returning to how religion was treated by the Founders.   As Kennedy himself put it, “The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. . . .   One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking ‘the grace of our Lord Jesus Christ,'”  (Greece, p. 10)
But the founders also owned slaves, and I would not view a return to that as an advance. Neither would my Kennedy-supporting friends, to be sure.  But the point is that it is the founding principles that matter, not the applications, which were sometimes very cramped and inconsistent. Let us be guided by their principles, not by their blind spots.
The prayers allowed by the founders in legislative session were essentially non-sectarian, given the almost entirely Christian, indeed nearly all Protestant, make-up of America of that day. Furthermore, Madison himself recognized them as a departure from a strict separation, but given the “de minimis” impact, tolerated them, as long as they were not used as precedent for further infringement. And this is precisely the problem with citing them as precedent for today’s decision.
We are doing just what Madison feared, using the “de minimis’ violations of his day to justify and excuse more egregious violations in our much more pluralistic day. Kennedy’s claim notwithstanding, it is not just the general acknowledgment of the divine that has been approved.  Rather, the Court has authorized the very specific acknowledgment of a biblical, Trinitarian, orthodox Christian view of the divine to be given advantageous pride of place in our public institutions.  At least where Christianity is in the majority, which is to say, in much of America.
Surely the impact of this will be to tell Hindus, Jews, Muslims—not to say agnostics and atheists—that they are essentially political outsiders in much of our Christian American republic. There is a principle of the golden rule at stake here. I am not referring to the version that says she who has the gold makes the rules, though that may be applicable here as well. It is the other, less popular version given by our Savior.  It is a rule of which even we Christians need constantly to be reminded. As I would not have Imams regularly invoking Allah, or Wiccans the triple Goddess of nature, at my governmental meetings, so I should not impose on them my religious worship, correct though I may believe it to be.

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