This is exactly the kind of micromanagement of belief that the court wanted to avoid when it declined to get involved with vetting the substance of individual prayers before legislative sessions. Instead we will just vet the substance of the individual religion. Moreover, the town’s representation to the high court that anyone—including an atheist—could lead the town prayers in Greece starts to look like a bait and switch when the town reserves the right to define which religions are legitimate. Officials “said they’re open to anybody,” Barry Lynn, executive director of Americans United for the Separation of Church and State, told Politics USA. “Now they’re not open to anybody. It’s really a scam.” According to Americans United, the new policy is in fact more restrictive than the old, unwritten rule, in that of the four non-Christians who were allowed to deliver an opening invocation since the sectarian prayer practice was adopted in 1999, only one would qualify under the new rules.
But credit where credit is due: Not everyone is enacting policies as completely ambiguous and subjective as the new rules in Greece. Last week, the board of commissioners in Brevard County, Florida, erased all doubt when they openly voted to prevent atheists from delivering invocations before their town meetings. The board specifically refused to include an invocation from an atheist on the theory that “the prayer is delivered during the ceremonial portion of the county’s meeting, and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist.”
Elsewhere in the wake of Town of Greece v. Galloway, the school board of Pickens County, South Carolina, is contemplating reverting to a policy allowing sectarian prayer before all school board meetings. This despite the fact that two federal appellate courts have concluded that the First Amendment bars school boards from legislative prayers—sectarian or otherwise. Forsyth County, North Carolina, is also trying to reinstate a policy allowing sectarian clergy to pray freely after Greece. In Huntsville, Alabama, the open, inclusive legislative prayer policy was deemed not to include Wiccans, whose representative, Blake Kirk was disinvited from solemnizing a town council meeting “because of phone calls from citizens alarmed about Kirk's faith.” (Evidently the citizens had “the collywobbles,” according to Kirk, a phrase so awesome it kind of makes me want to become a Wiccan myself.) And who can forget the board of supervisors in Chesterfield County, Virginia, which briefly flirted with the post-Greece notion of limiting prayers at meetings to those delivered by “ordained religious leaders of monotheistic religions” but has now settled on a new policy that would have the invocation rotate among the supervisors themselves (which raises its own First Amendment questions).
All of this mayhem might explain why the town of Amherst, Virginia, voted this week to stick with the good old moment of silence, despite the Supreme Court’s invitation to go back to sectarian prayer. The only people who can be sure that their prayers are being answered around the country are attorneys.
Justice Antonin Scalia himself made it clear early this summer that he believed the court’s ruling in Town of Greece opened the door to constitutional acceptance of things like graduation ceremonies held in churches and a brand new test for all Establishment Clause challenges. The majority of his colleagues seem to disagree. In other words, even the justices themselves are not sure exactly what they decided about the First Amendment in the Greece case.
Proponents of sectarian public prayer in council meetings and schools have argued that atheists, Wiccans, satanists, and spaghetti monsters were emboldened by the Greece ruling to push their fake religions out into the town square and that is precisely why the town of Greece, and jurisdictions around the country, are now codifying their laws to fence out those objectors. Of course the other possibility is that the decision in Town of Greece emboldened religious majorities all around the country to put into writing that which they used to only tacitly admit: that some religions are more equal than others and that we can readily distinguish between the real and fake religions, simply by putting it to a vote.