Americans Now Get to Decide Which Religions We Want to Protect. Guess Which One Will Always Win?

The law, lawyers, and the court.
May 6 2014 5:11 PM

Majority Rules

Americans now get to decide which religions we want to protect. Guess which one will always win?

Worshipers raise their hands as they pray during the America for Jesus rally on Oct. 22, 2004, in Washington, D.C.
Worshipers raise their hands as they pray during the America for Jesus rally on Oct. 22, 2004, on the National Mall in Washington, D.C.

Photo by Alex Wong/Getty Images

When the Supreme Court handed down its decision Monday in Town of Greece v. Galloway, many commentators suggested that it was an overreaction to believe that it would impact religious freedom in America. If anything, they argue, we are all a little bit freer this morning, as the court has moved away from the stifling demand that religious invocations before a town council meeting be limited to “nonsectarian” references, such as the “Almighty” or “addressed only to a generic God.” In a significant shift from earlier case law, Justice Anthony Kennedy wrote that local government “cannot require chaplains to redact the religious content from their message to make it acceptable for the public sphere.” From now on, religious leaders can offer full-throated, unapologetic prayers to the god of their choosing in public meetings. And in language consistent with one of the most speech-protective courts in modern history, Kennedy reminds religious objectors that citizens who “feel excluded or disrespected” by such religious invocations should simply ignore them. “Adults often encounter speech they find disagreeable,” he wrote.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

Whenever you hear cries that freedom has won, it’s worth contemplating who, if anyone, has lost. And less than 24 hours after the court handed down its decision in Town of Greece, citizens of Roanoke, Virginia, have their answer. Al Bedrosian, a member of the Roanoke County’s board of supervisors, was sufficiently emboldened by the majority opinion to announce that he would seek to impose a Christian-only prayer policy.

“The freedom of religion doesn’t mean that every religion has to be heard,” said Bedrosian on Monday night, adding that he is concerned about groups such as Wiccans and Satanists. “If we allow everything … where do you draw the line?” he asked.

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Indeed. Asked if he would allow representatives from non-Christian faiths and non-faiths, including Jews, Muslims, atheists, and others, Bedrosian candidly replied that he likely would not. And does Bedrosian believe that he is curtailing anyone’s freedoms? No. “If a non-Christian wished to pray during a meeting,” Bedrosian said, he or she would be able to do so during the allotted time for citizen comment.

In the event that you are still wondering what Bedrosian thinks about religious pluralism and tolerance in America, he isn’t hiding the ball here: “I think America, pretty much from Founding Fathers on, I think we have to say more or less that we’re a Christian nation with Christian ideology. … If we’re a Christian nation, then I would say that we need to move toward our Christian heritage.” Bedrosian evidently wrote a letter to the Roanoke Times in 2007 making this same point. There he argued that only Christians should enjoy freedom of religion in America, and that “one of the greatest moments in U.S. Senate history came when a Christian group recently shouted for God to forgive us during the opening prayer of a Hindu in the Senate.”

Now it’s easy to dismiss Bedrosian as an outlier, given that his all-Christian prayer policy not only violates the Constitution but also might alarm concurring Justice Samuel Alito, who indicated in his opinion Monday that he might view a legislative prayer policy differently if it were intentionally discriminatory against minority religions as opposed to just an inadvertent clerical error as it was in Town of Greece. (As I wrote Monday, it seems convenient, if not naive, to believe that inviting only Christian chaplains for almost a decade was simply a scheduling mishap.) It’s equally easy to dismiss Alabama’s Chief Justice Roy Moore, who said in a speech in January that freedom of religion in America applies only to the God of the Bible and that Establishment Clause protections do not extend to other religions, such as Islam and Buddhism. “Buddha didn’t create us. Muhammad didn’t create us. It’s the God of the Holy Scripture,” he explained.

Well, crackpots are crackpots wherever they are, you may say. Except Kennedy’s plurality opinion Monday opened the door to precisely this line of argument as a result of all his airy talk of religious tradition and history. “The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths,” writes Kennedy. “That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition.”

He adds that “it is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.” In other words, because the prayers offered in the town of Greece abided by this long “tradition,” they are, in Kennedy’s view, acceptable. Even when explicitly Christian. Why? “A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a ‘spirit of cooperation’ among town leaders.” What Kennedy did here, in the event that you missed it, was to announce that as a matter of constitutional law, some religious traditions that are universal and longstanding are basically Christian and also that Christian values are basically universal. Done and done. But in so doing he also drew a line between “traditional” and accepted religions, and religions that are “other.” That seems to open the door for Bedrosian to zone out the Muslims and the Jews and for Moore to zone out the Buddhists and (surprise!) the Muslims.

It’s hard to avoid noticing that in its decision, the court publicly and vocally split almost perfectly along religious lines, with the three Jews and a Catholic arrayed against the five Catholics in the majority. So much for monolithic Judeo-Christian values. The court also did a massive disservice to religions that are neither old, nor traditional, and even to the old, traditional religions that cringe at the watering down of their religious beliefs in a public forum. Instead the court practically invited local legislators to make judgments about which “traditions” are sufficiently lofty and universal to warrant offering them meaningful speech and religious protections. Whatever the First Amendment was or was not intended to do, creating a class of respectable, “traditional” religions and another class of lesser religions shouldn’t have been the object. As Thomas Jefferson put it in a letter to Elbridge Gerry on Jan. 26, 1799, “I am for freedom of religion and against all maneuvers to bring about a legal ascendancy of one sect over another.” The real worry after Town of Greece is that we get to pick, apparently by popular acclaim, which are the American religions and which are the un-American ones.

Pro tip: The Wiccans will always lose.

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