SCOTUS is wrong on Greece v Galloway

By now most of us have had a chance both to recover from the initial shock and to absorb some of the details of this week’s Supreme Court ruling on Greece vs. Galloway.

Briefly, the Court was asked to decide if the town of Greece, NY, violated the Constitution in inviting mostly Christians to deliver prayers–often quite sectarian prayers–before meetings of the town council. For almost ten years ALL of the monthly prayers were Christian; during the tenth year (once complaints were lodged) four non-Christian supplicants delivered the prayers, but since then the prayers have returned to being exclusively Christian.

The Court’s ruling is a hodgepodge of tepid and specious rationalizations. At least there are spirited dissents by Breyer and Kagan. If you haven’t read it yet, go here.

Back so soon? Here we go…

It’s a tradition. The Court makes much of the fact that legislative prayer has a long history that goes back to the founding of the republic. This is possibly the worst of the rationalizations. Slavery was a tradition–heck, it was embedded in the Constitution. There is no linkage between something being traditional and being good (or right, or legal).

It sets a proper tone. “The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.” Yeah, maybe. And perhaps it was intended to pander to a certain voting demographic that’s well known for it’s enthusiasm at the ballot box. Surely there are other, more religiously neutral ways to set a proper tone.

It’s ceremonial. Ah, yes, the old “ceremonial deism” gambit. Ask anyone you now who’s “for” such prayers, or in favor of putting “In God We Trust” on the currency, or wants “under God” to remain in the Pledge of Allegiance, if they agree that it’s merely ceremonial, and they will either laugh in your face or look at you as if you’d sprouted an extra head. The naked truth is that all such expressions of a “ceremonial” nature are motivated by either outright piety or the desire to kowtow to the pious who vote. Please, let’s put this ceremonial deism bullshit to rest.

It’s for the legislators, not for the public. “The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.” This statement is contradicted by every description of the invocations in question. In nearly every example offered, the minister or layperson faced the audience, not the councilmen, and began with exhortations such as “Let us pray,” “Would you bow your heads,” etc., followed by a prayer that presumed to speak for “us,” “we,” and “our.” Nobody ever said, “If the council will bow their heads…”

It’s not (particularly) coercive. “The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece… Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed.” Since I’m sure members of the Court are not naive, I can only assume they’re being disingenuous. Just because we don’t have council members on tape bwa-ha-ha-ing over wringing hands about how they’re gonna stick it to the infidels doesn’t mean that coercion and intimidation aren’t at play. Does the Court seriously think that a person who rises and exits during the prayer, or declines to rise on command, won’t be noticed? Does the Court seriously think that anyone with the audacity to challenge sectarian assertions offered in a particular prayer won’t be disadvantaged in whatever matter they’re bringing to the council? The Court also says in this ruling that exposure to this sort of prayer “bears no resemblance” to the overt, authoritarian policies that typified colonial governments, in which dissenters from the state religion were disenfranchised, arrested, jailed, exiled, and even killed. While that’s true, the Court fails to admit that such petty intimidations as legislative prayer, “under God” in the Pledge, etc. are the attenuated, defanged remainders of what WOULD be happening today were it not for the First Amendment.

Lawmakers and judges shouldn’t have to become the prayer police. The Court squirms at the notion that any pastor would be asked to tone it down, or sculpt his prayer so as to recognize that a broad spectrum of believers and non-believers might be present. As long as they don’t proselytize or condemn other beliefs…oh wait, isn’t that also being the prayer police? And isn’t just skipping the prayers altogether the easiest way to avoid being the prayer police?

Offense does not equate with coercion. Here I have to agree with the Court. I’ve never liked the argument that plaintiffs were “offended” by this or that. Being offended is not what’s at stake, but rather being disadvantaged and discriminated against by government agents on the basis of your reaction (or non-reaction) to religious pronouncements. What the Court needs to address is to what extent a citizen should have to tolerate such coercion. Apparently “some” is the answer, when it should be “none.”

Local government is run by part-timers and amateurs. “The informal, imprecise way in which the town lined up guest chaplains is typical of the way in which many things are done in small and medium-sized units of local govern­ ment. In such places, the members of the governing body almost always have day jobs that occupy much of their time. The town almost never has a legal office and instead relies for legal advice on a local attorney whose practice is likely to center on such things as land-use regulation, contracts, and torts… [The] municipality should not be held to have violated the Constitution sim­ply because its method of recruiting guest chaplains lacks the demographic exactitude that might be regarded as optimal.” There you have it: the Court justifies the lackadaisical, haphazard and purely reactive way in which the city of Greece selected the monthly chaplain by pointing out that it, like most local goverments, is just run by a bunch of amateurs, and we shouldn’t expect them to excel at their goverment jobs.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” No doubt this is a First Amendment case. Justice Clarence “Chatterbox” Thomas, in his concurring opinion, sheepishly admits that the First Amendment “probably prohibits Congress from establishing a national religion.” What the Court overlooks, in my opinion, is the “prohibiting the free exercise thereof” part. Prayer is, if it is nothing else, an expression of religious sentiment, and therefore an exercise of religion. And when any government agent organizes or coordinates a prayer, in his or her capacity as a government agent, it is no longer FREE exercise. Citizens should not be forced to decide whether they should participate in public prayer, give the appearance of acquiescence, inconspicuously absent themselves during the prayer, or (shudder at the thought) dare to conspicuously oppose the contents of the prayer.

Utimately, there is no such thing as a nonsectarian prayer. Even relative innocuous statements like “In God We Trust” or “under God” presume that citizens even believe in the existence of someone or something called “God.”

Opponents of public prayer are not asking for government-sponsored pronouncements of “There Is No God” or “This Is an Atheistic Nation.” We are merely asking for neutrality. Is it really so hard for our local city or county government to get on with the business of paving roads and collecting taxes, that they can’t do so without stopping (and making everyone else stop with them) to bend God’s ear? Do Americans really not get enough exposure to religion that they need to be reminded AGAIN to behave themselves while sitting on the city council?

While this Supreme Court decision isn’t the end of the world, it will only embolden petty bureaucrats and pious do-gooders to insert their religious beliefs into the public sphere at every opportunity. I predict a nationwide surge in interest–a revival, if you will–in prayer, prayer, prayer (mostly to Jesus) at the local level. Freethought, humanist and other secular groups will feel obligated to “get into the rotation” to deliver invocations, lest they be left in the dust. And isn’t it just a huge waste of time?

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