A rabbi, a priest, and an atheist walk into the Supreme Court. The atheist gets told to have a seat at the bar …
Let’s agree: We’ve been killing one another over religious controversies for thousands of years. That, and gossiping, is pretty much all humanity has been doing for the past few millennia. But Wednesday at the Supreme Court Justice Stephen Breyer more or less proposes that we send out for sandwiches, roll up our sleeves, and settle this thing once and for all. And he almost manages it. While his colleagues on the bench sit in various states of head-holding despair, Breyer sets out to get Wednesday’s litigants to settle on doing religion more inclusively.
The court hears arguments in Town of Greece v. Galloway, a long-simmering fight about religious prayer before town council meetings. Since 1999, the town of Greece, N.Y., has been opening its monthly legislative sessions with sectarian Christian prayers led by a “chaplain of the month.” Two female residents—a Jew and an atheist—sued the town in 2008, claiming these prayers represent an unconstitutional government “establishment” of religion in violation of the First Amendment. (After 2008, the town invited a few non-Christian chaplains to offer prayers, including a Baha’i, a Jew, and a Wiccan priestess.) The district court granted summary judgment for the town, and the 2nd U.S. Circuit Court of Appeals found for the two women in an opinion parsing out how a “reasonable objective observer” would feel about the board’s prayer, concluding that they would feel like the town was establishing a religion: Christianity.
Now legislatures are free to open their sessions with prayers, even sectarian prayers. Why? Because they’ve been doing so since the first Continental Congress, and also because in 1983, in a case called Marsh v. Chambers, the Supreme Court said that legislatures may begin their sessions with a prayer because they had been doing so since the first Continental Congress. The Marsh court did say, however, that such prayer is only permissible so long as the “government does not act with improper motive in selecting prayer-givers or exploit the prayer opportunity to proselytize, advance, or disparage any one faith or belief.” That standard would seem to require some sort of test.
And here I could bore you with talk about whether the courts have applied the so-called Lemon test, former Justice Sandra Day O’Connor’s so-called endorsement test (O’Connor is in court Wednesday), the so-called coercion test, or the pick-through-a-crèche-for-a-teddy-bear test, but the answer to each of the above questions would be “yes.” Yes, the court has applied that test—except when it has applied some other test. It’s all a huge mess with a lot of judicial hair-pulling, and now somebody has to decide whether the town of Greece crossed the line into establishing religion with their several years of exclusively Christian prayer.
The session opens with the usual “God save the United States and this honorable court." And the attorneys sworn into the Supreme Court all dutifully stand and pledge to do so—“So help me God”—and then, not wanting to be late to the God party, Justice Elena Kagan jumps in with the first question to the town of Greece’s attorney, Thomas Hungar. Kagan wonders whether it would be constitutionally permissible to open Supreme Court sessions with an invocation to “the saving sacrifice of Jesus Christ on the cross ... ”
Hungar replies that he believes this would be unconstitutional, since Marsh is about legislative prayer, not prayer in a courtroom. Kagan then asks whether such a prayer would be permissible in a congressional session, and Justice Antonin Scalia adds the caveat that it would be with the understanding that a Muslim and Orthodox Jew could lead future prayers. Hungar says that would be OK.
Justice Anthony Kennedy wonders why Hungar was so quick to dismiss Christian prayer before a Supreme Court session as unconstitutional. Hungar replies, “Legislatures can be partisan. The judiciary should not be.” This response leads Scalia to wonder why, if that’s so, the high court can open its sessions with “God save the United States and this honorable court.”
Chief Justice John Roberts asks Hungar whether the fact that things have always been this way is enough to make them constitutional. “I wonder how far you can carry your historical arguments ... in other words, the history doesn't make it clear that a particular practice is OK going on in the future.” Hungar replies that since the first Congress was writing and sending the First Amendment out to be ratified while adopting the practice of having a congressional chaplain, they clearly thought legislative prayer was constitutional.
Kennedy stops Hungar again: “The essence of the argument is we've always done it this way, which has some force to it. But it seems to me that your argument begins and ends there.”
Here’s where Breyer tries to just settle this puppy on the spot. He turns to Hungar and asks if he has any objection to “publicize rather thoroughly” that “nonreligious people are welcome to come offer a prayer?” On a website maybe? Hungar says he doesn’t think the town is constitutionally obligated to do that. Breyer presses forward: “But if all that were left in the case were the question of making a good-faith effort to try to include others, would you object to doing it?”
Scalia breaks in to ask Hungar: “What is the equivalent of prayer for somebody who is not religious?” Hungar replies: “It would be some invocation of guidance and wisdom from ... ” Scalia interrupts him: “From what?” Hungar says he doesn’t know.
The Obama administration came into this case on the side of Greece, not the plaintiffs, and Deputy Solicitor General Ian H. Gershengorn explains that the problem with this entire inquiry is that it “invites exactly the sort of parsing of prayer that Marsh sought to avoid and that federal courts are ill-equipped to handle.” Justice Sonia Sotomayor tartly reminds him that unless you parse the prayers, you can't determine whether the kind of proselytizing or damnation forbidden by Marsh has gone on. When Gershengorn replies that it’s too complicated to try to determine whether prayer is sectarian, Sotomayor snaps back, “Seriously, counselor. You can't argue that the quote that Justice Kagan read is not sectarian. It invokes Jesus Christ as the savior of the world. There are many religions who don't believe that. Let's get past that.”
Kagan boils the whole problem down this way: “Here a citizen is going to a local community board, supposed to be the most responsive institution of government that exists, and is immediately being forced to identify whether she believes in the things that most of the people in the room believe in—whether she belongs to the same religious team as most of the people in the room.”
Gershengorn replies that “the backdrop of 240 years of history makes this different.”
Kennedy then hits him with this one: “Part of your test is whether or not [the prayer] advances religion. If you ask a chaplain for the state assembly … who's going to go to the assembly to deliver a prayer, ‘Are you going to advance your religion today?’—would he say, ‘Oh, no!’?” Kennedy thinks it’s absurd to ask chaplains to avoid “advancing” religion when they pray.
Professor Douglas Laycock from the University of Virginia has 30 minutes to defend the two plaintiffs. He explains that the town should simply “instruct the chaplains [to] keep your prayer nonsectarian.” Justice Samuel Alito asks him to “[g]ive me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, and Hindus … Wiccans, Baha'i.”
“And atheists,” chimes in the chief justice.
“Throw in atheists, too,” prompts Scalia.
Laycock concedes that the atheists are not going to leave happy today. So Alito asks for a prayer that satisfies everyone else. They go back and forth over whether prayer to “the Almighty” would satisfy the pantheists and what to do with the devil worshippers. Laycock starts to read a prayer from the record that would seemingly offend nobody, then checks himself when he finds that it ends “in Christ’s name.”
That leads Roberts back to the original sin of Marsh: “Who was supposed to make these determinations? Is there supposed to be an officer of the town council that will review them?” Laycock replies that clergy have been leading nonsectarian civic prayer for 200 years. They know how to do this. Also, 37 state legislative bodies and the U.S. House of Representatives already issue guidelines to chaplains.
Laycock further explains that the sectarian prayer in the town of Greece was clearly coercive. Scalia says, “This is coercion? [The chaplain] says, ‘May we pray,’ and somebody doesn't want to pray, so he stays seated?” And again Breyer comes in, trying to resolve the problem by wondering whether the town can’t just say, “Let's try to be inclusive.”
“So town councils like Greece can have prayers if they are nonprovocative, modest, decent, quiet, nonproselytizing?” concludes Kennedy, sadly. Scalia notes that the people on this board pray at home, before their meals. “It seems to me an imposition upon them to stifle the manner in which they invoke their deity,” he says.
Kagan then voices what everyone else is thinking: “I don't think that this is an easy question. I think it's hard because the court lays down these rules, and everybody thinks that the court is being hostile to religion, and people get unhappy and angry and agitated in various kinds of ways. And every time the court gets involved in things like this, it seems to make the problem worse rather than better.” It’s a pickle. Judges gonna judge.
Happily, Breyer’s down to the last settlement details. He tells Laycock to just accept a deal wherein the town “must make a good-faith effort to appeal to other religions who are in that area.” And someone tells the chaplains to keep in mind that the board "is comprised of members of many different faith traditions." Done and done, right? Laycock almost sounds ready to take it. Kennedy questions whether “we write that in a concurring opinion?”
But seriously, Kennedy adds, this “involves the state very heavily in the censorship and the approval or disapproval of prayers." That sounds awful until you consider the possibility of the state involving itself in forcing people to sit through years of sectarian prayer before they may petition their city council about crosswalks. And the only thing that sounds worse than all that is that the Supreme Court may finally need to pick a workable test for when the state crosses the Establishment Clause line, which is something not one of them seems to want to do. Because in a case about protecting unpopular religions, the last thing the court wants to do is decide something, well, unpopular.