In short, what is commonplace to Alito must by definition be so for everyone. Alito is also at pains to explain that the decade of Christian prayer in Greece was not intentional. At worst, it simply was the result of a clerical error in compiling a list of all-Christian chaplains. Again, the assumption seems to be that since—left to their own devices—polite majority religions will almost always inadvertently privilege themselves, there can be no real constitutional harm here. He does not see that this is precisely the danger.
Alito and Kennedy seem convinced that religion not only civilizes and unifies us all (see Alito’s amazing discussion of the great religious unification of 1774), but that anyone not similarly elevated and inspired is just kind of lame. Perhaps because their version of religion is so sweetly polite, they’ve reimagined the refusal of dissenters to either pray along or remove themselves from the room—but in any event to stop kvetching—as civic rudeness.
Scalia and Justice Clarence Thomas file a separate concurrence to make certain that even as Kennedy has eviscerated his own “coercion” test for Establishment Clause violations, they do not believe that anyone can ever be coerced by state endorsement of religion, unless there has been brutal and repressive coercion:
… to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the “subtle coercive pressures” allegedly felt by respondents in this case.
Thomas adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.
This brings us to Justice Elena Kagan, sounding almost, forgive me, biblical in her condemnation of the majority’s “blindness” to the impact of a decade’s worth of majority religion in Greece: “No one can fairly read the prayers from Greece’s town meetings as anything other than explicitly Christian—constantly and exclusively so,” Kagan writes. “The prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths.”
Kagan seems to understand that religion can divide, roil, and humiliate as often as it can unify us, and that it’s not to be left to majorities to assert what the polite or proper levels of compulsory sectarian preaching might be. She writes:
The monthly chaplains appear almost always to assume that everyone in the room is Christian. … The Town itself has never urged its chaplains to reach out to members of other faiths, or even to recall that they might be present. And accordingly, few chaplains have made any effort to be inclusive; none has thought even to assure attending members of the public that they need not participate in the prayer session. Indeed, as the majority forthrightly recognizes, when the plaintiffs here began to voice concern over prayers that excluded some Town residents, one pastor pointedly thanked the Board “[o]n behalf of all God-fearing people” for holding fast, and another declared the objectors “in the minority and … ignorant of the history of our country.”
In other words, it makes no sense to defer to majorities in legislatures and trust their claims that “all God-fearing people” love to pray to Jesus before secular legislative sessions. That deference is too steeped in assumptions about what is ordinary, necessary, and, yes, polite.
So freedom in America now means more and more sectarian “prayer opportunities” will be hand-delivered to us as we go about our daily lives. And you can be certain that here in the Land of Opportunity, more and more such “opportunities” to respect and honor and even worship along with the majority religions will be offered to us. And more and more, “freedom” will come to mean that unless you are being condemned to hell or threatened with conversion, you are free to sit quietly and give thanks that you still live in a free country. Amen.
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