As the United States marches forward in its quest to restore its former greatness, it should surprise nobody that government sponsored Christian prayer is now apparently going to be a thing again. On Monday, a divided three-judge panel of the 4th U.S. Circuit Court of Appeals reinstated what’s been a years-long, all-Christian prayer regime in Rowan County, North Carolina, partly because of the long-standing history of sectarian worship in the region and partly because, in their telling, minority religious objectors are just thin-skinned and childish. In allowing the county’s Board of Commissioners to resume offering prayers before legislative sessions, Judge G. Steven Agee’s 2–1 majority opinion relied mainly on a 2014 Supreme Court legislative prayer case called Town of Greece v. Galloway for the new proposition that sectarian prayer before government meetings should be permitted if nonbelievers aren’t feeling shamed or coerced. The majority in Town of Greece also insisted that public prayer—even to someone else’s God—ennobles and calms us all, another flawed proposition on which this latest ruling also relies.
The case will almost certainly go to a panel of the full court now, which means this opinion might not be long for this earth: The 4th Circuit, once the most conservative of the federal appeals courts, is today seen as one of the most liberal. That doesn’t change the fact that this opinion enshrines into law the pitiless disregard for minorities, and misapprehension about what it means to be treated equally by the state, that has made this election season so toxic.
The facts of the case are not in dispute; the only issue is whether the Supreme Court’s ruling in Town of Greece changed everything we knew about the Establishment Clause when it came to sectarian legislative prayer. The majority believes that it did. But as Judge J. Harvie Wilkinson III notes in his dissent, this ruling goes much farther even than Town of Greece.
The Board of Commissioners for Rowan County holds public meetings twice a month. It allows each commissioner, all five of whom are Christian, to lead prayers on a rotating basis before meetings. Perhaps unsurprisingly, then, the commissioners offered explicitly Christian prayers 97 percent of the time between 2007 and 2013. Although not required to do so, the audience mostly joined the commissioners in standing and bowing their heads. Even though the courts have long allowed for legislative prayer, even sectarian prayer, the notion that a set of legislators can offer only Christian prayers for months and years on end would seem to obviously violate the constitutional bar on establishing a state religion.
The district court agreed. Three county residents brought suit in 2013 with the help of the American Civil Liberties Union. In 2015, Judge James Beaty of Greensboro ruled that the fact that only five rotating board members of the same faith led prayers made the case different from Town of Greece. In that case, a town in upstate New York had invited almost exclusively Christian chaplains to solemnize legislative sessions over a lengthy period of time. The North Carolina arrangement seemed much worse to Judge Beaty. Because each of the five commissioners is Christian, they invariably “ask everyone—including the audience—to stand and join in what almost always is a Christian prayer.” The system is perfectly closed and perfectly sectarian, all the time. The state at least appears to be establishing that faith as the government’s official religion.
But the appeals court held that the commissioner-led prayer practice is indeed constitutional. Why? The majority argued that since the Supreme Court’s Town of Greece ruling that sanctioned clergy-led prayers in legislative bodies never ruled out lawmaker-led prayers, it follows that they should be OK too.
The majority also devoted a good deal of ink to the long-standing tradition of lawmakers offering invocations, noting that both houses of Congress allow legislators to solemnize sessions with a prayer; that indeed “as recently as May 2015, Senator James Lankford commenced legislative business in the Senate with a prayer invoking the name of Jesus.”
The reason legislator-led prayer is permissible, they argued, is because “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.”
Predictably, the majority takes Justice Anthony Kennedy up on his claim from Town of Greece that only prayers which “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” might cross the constitutional line, but anything short of prayer intended to “proselytize or disparage” must be OK. Even though, the “Christian concepts typically consisted of the closing line, such as ‘In Jesus’ name. Amen,’ ” the court finds that “these are not really Christian prayers.” The majority simply rejects that notion that multiple references to such Christian concepts might “convey the appearance of an official preference for Christianity.” Sigh.
“There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently,” the court writes. And even if, the majority continues, “there were, it is the practice as a whole—not a few isolated incidents—which controls.” (They may have written this caveat because—as the dissent explains—at least one prayer from 2011 beseeched: “Let us pray. Holy Spirit, open our hearts to Christ’s teachings, and enable us to spread His message amongst the people we know and love through the applying of the sacred words in our everyday lives. In Jesus’ name I pray. Amen.”) With respect to the examples of prayers in the record that more forcefully or aggressively promote Christianity, the majority scoffs that “Plaintiffs’ hypersensitive focus is misguided.”
To summarize, the mild sectarian prayer is not sectarian, and the aggressive sectarian prayer shows that non-adherents are too sensitive. All of this was presaged by Town of Greece. As I argued when that case was decided:
To the extent the court ever played a role in ensuring that minority religious rights were not trammeled by well-meaning majorities who fervently believe that here in America we are all basically just country-club Judeo-Christians with different hairstyles, the jig is up: From now on we just do as the religious majorities say, so long as nobody is being damned or converted.
As for legislators who routinely opened their invocations by saying the phrase “let us pray” to the audience? The majority is cool with it, again echoing Kennedy: “The phrase ‘let us pray’ is a familiar and ‘almost reflexive’ call to open an invocation that hardly compels in the rational mind thoughts of submission.” The same goes for the Board’s request for audience members to stand. “We may safely assume that mature adults, like Plaintiffs, can follow such contextual cues without the risk of religious indoctrination.” The Establishment Clause thus handily shifts the burden to minority religionists to stop being so whiny.
In dissent, Wilkinson—who authored an important legislative prayer opinion in 2011—seems to well understand what it means when we tell a vulnerable minority that their objections are imaginary: “[When] a seat of government begins to resemble a house of worship, the values of religious observance are put at risk, and the danger of religious division rises accordingly.”
Wilkinson distinguishes the facts here from Town of Greece. In this instance:
... prayers served to open a meeting of our most basic unit of government, a local board of commissioners that passes laws affecting citizens in the most daily aspects of their lives. The prayers, bordering at times on exhortation or proselytization, were uniformly sectarian, referencing one and only one faith though law by definition binds us all.
The dissent is remarkable, personal, and a reminder that even a dissenting judge can be deeply moved by prayer. “Each invocation was luminous in the language that many millions of Americans have used over many generations to proclaim the Christian faith,” Wilkinson writes.
However, he was also aware that not everyone is deeply moved by that same prayer and that some may be deeply alienated by it:
A ruling for the County bears unfortunate consequences for American pluralism, for a nation whose very penny envisions one out of many, a nation whose surpassing orthodoxy belongs in its constitutional respect for all beliefs and faiths, a nation which enshrined in the First and Fourteenth Amendments the conviction that diversity in all of its dimensions is our abiding strength.
What Judge Wilkinson is worried about here is the majority’s cavalier dismissal of non-adherent sensitivities, and he says that as a Reagan appointee, once shortlisted as a potential George W. Bush pick for chief justice.
Chiding the majority, he writes:
It is not right to think that adherents of minority faiths are ‘hypersensitive.’ If we Christians were a religious minority, we would surely be sensitive to the invariable commencement of town hall meetings through invocation of a faith to which we did not subscribe.
Just as important, the real harm isn’t just the sensitivities of the nonreligious but the ways in which the minority is now cast as a dissenter against an entire body of government. “When the state’s representatives so emphatically evoke a single religion in nearly every prayer over a period of many years,” Wilkinson writes, “that faith comes to be perceived as the one true faith, not merely of individual prayer-givers, but of government itself.”
Perhaps we are past the moment in U.S. history where majorities can be persuaded that minority views are anything more than hypersensitivity, or that scoffing at these grievances will neither calm the waters, nor restore America’s former “greatness.” When we belittle others in Donald Trump’s America, it’s not just their alleged thin skin we’re dismissing. We are also signing off on using the machinery of government to marginalize disfavored groups from full participation in this country.
Wilkinson’s dissent is a bracing reminder that it’s not the role of the courts to scold or demean vulnerable minorities but to protect them. That was what the Framers imagined freedom really meant. “In venues large and small, a message of religious welcome becomes our nation’s great weapon, never to be sheathed in this or any other global struggle,” Wilkinson writes. Amen.