Some Thoughts on Town of Greece

Last week the Supreme Court decided the Town of Greece case, in which it blessed the appropriateness of regular sectarian prayer during city council meetings.  I'll not go over all the details here, but rather point folks to good writes ups here and here (via) that explain what the holding was and how the majority got there.  I do have a few additional thoughts, however.

Given that everybody on the Court accepts the continuing validity of the Marsh decision, which approved of an opening prayer in a state legislature, the majority didn't have far to go to reach the same conclusion here.  That was partly due to the plaintiffs themselves.  Per the majority, this was their goal in bringing suit:

They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumencial' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief.

In light of that litigation strategy, I think it was doomed from the start.  Reasonable compromise may be an effective political strategy (although see), but rarely a legal one.  Compared to what the plaintiffs were asking for, what the town of Greece was already doing wasn't all that different.  At most, it was a difference in degree, not in kind.  Hard to force a court to see the injustice in allowing the status quo to continue.

Having said that, I think Kagan does a good job of showing how the situation in town of Greece was really quite different from Marsh and provided a basis to come to a different conclusion.  Unlike Marsh where, by the prayer defenders' own argument, the prayers at issue were directed only at legislators (and where it was changed in response to a single objection from a Jewish legislator), the context of the town of Greece's prayers were as part of, and prelude to, proceedings in which citizens directly interact with their government.  As she put it in her introduction:

Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

Note, however, that in her paean to inclusiveness, Kagan skips over/ignores the atheists, agnostics, or other folks who simply aren't religious.  It's an effective reminded that, for all the various religious squabbles that happen in this country, we nonbelievers aren't even considered in most instances.  Kagan has beautifully written about the need for the government not indulge both country and western, but leaves out any mention of the techno jazz trip-hop folks.  And so it goes.

I would have joined Kagan's opinion.  Actually, I'd probably gone all liberal Thomas and write a separate opinion going back to the underlying law and calling it out for being wrong.  Having said that, I think the space between the majority and dissent in this case is pretty tight.  I also think the knock-on effects of the ruling are pretty obvious.  Already we've had the irreligious and minority religious folks chomping at the bit to be included, while at least one Christian in a position of authority has decided to exclude anybody he doesn't like.  This is what happens when we turn regular business meetings into places of worship.

One thing that I find odd about Marsh, and the majority opinion on which it was based, is that it rests heavily on the practice of the initial Congress in having opening prayers.  I understand the appeal of looking at what the Founding Fathers did, but they weren't great about following their own constitutional commands.  How else do you explain the Alien and Sedition Acts, which criminalized dissenting political views?  As Justice Brennan put it in a book, “the ink had barely dried on the First Amendment” when Congress passed those acts.  Those acts were so repugnant to a modern understanding of the First Amendment that the Supreme Court recognized that:

[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.

Politics happens and it has always happened.  Looking to the behavior of elected officials as a guide to our higher Constitutional principles is a fool's errand.

While it's important to note that the plaintiffs in Town of Greece weren't trying to stop the prayers, one of the plaintiffs was (so I've read) an atheist.  I sometimes see, particularly in Facebook discussions, Christians who wonder (sarcastically, I assume) why atheists get so "scared" about things like this when they don't really believe in God anyway.  Speaking only for myself, atheists aren't "scared" about the content of prayers themselves, but we are concerned about the power of the state being co-opted by religious groups.  We're angry that the First Amendment seems to mean so little in such situations.

And the harm suffered goes beyond mere hurt feelings:

the harm is that the legal relationship between a government and its citizens has been altered, so that minorities now stand in relation to government as minorities, rather than simply as Americans. Government prayer renders them separate members of the political community, regardless of how they feel subjectively. Justice Kagan is careful about this in her dissent. Every time she describes the harm, she says that citizens of Greece “become partly defined by their creed,” or that the town’s prayer 'alters a dissenting citizen’s relationship with her government,' or that the member of a minority faith 'becomes a different type of citizen ... she stands at a remove, based solely on her religion, from her fellow citizens and from her government.' Constitutional harm of this type is not about the subjective feelings of sensitive minorities, and it is not something that can be avoided by desensitizing them.

Kagan goes through several hypotheticals where a non-participant in the prayer then has to turn around and ask the governing body to take some action on their behalf.  There are reasons we'd never allow a trial to be begun with a prayer, lest any of the parties feel they were behind the theological 8-ball from the very beginning.  Why should a town council meeting be different?

At bottom, what we nonbelievers can't quite figure out is what the purpose of these prayers are.  Why start a business meeting with a plea to the almighty?  Here's what Kennedy says it's for:

As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.

If that's the goal, then I think we can safely conclude that these kinds of prayers are empty exercises.

Which means, in the end, this might all be a bunch of sound and fury (with the requisite helping of idiots) signifying not an awful lot.  I hope so.