On Wednesday November 6th, the United States Supreme Court will return to a controversial field that they have largely avoided since 1983- public prayer by governmental bodies. The town of Greece, located in upstate New York, is a suburb of Rochester and numbers some 100,000 people. Since about 1999, their City Council has opened their sessions with a prayer by invited clergy. The facts of the case clearly illustrate that the overwhelming majority of those clergy were Christian. The practice continued until 2010 when a District Court determined that such prayers were "likely" unconstitutional and violated the Establishment Clause of the First Amendment. The town appealed that decision to the Second Circuit which affirmed the District Court's decision. They ruled that the practice had the effect of aligning the town with one particular faith- Christianity. However, they established no test and merely stated that because a reasonable person could make the conclusion that the Town of Greece was aligning itself with Christianity- the prayers were by Christian clergy espousing Christian themes- the town violated the Establishment Clause.
The last time the Court heard a case like this was in the 1983 case Marsh vs. Chambers. There, the Court determined that the tradition of opening a state legislative session in Nebraska with a prayer was constitutional. They relied heavily upon the well-documented practice of Congress opening their sessions with a prayer or invocation since the time this country was founded, indeed even prior to that. In the interim, lower courts have been left to themselves to determine if the practices are constitutional or not. The Town of Greece argued that the Court should take this case to essentially lay some groundwork and eliminate the ensuing confusion and ad hoc nature of these lower court decisions.
Since 1983, the Court has heard only two similar cases, both involving public schools, not legislative or municipal bodies. In 1992, the Court decided the case of Lee vs. Weisman. The decision was 5-4 with Kennedy casting the key vote in favor of the liberal wing of the Court at that time. This involved an invocation and benediction at a middle school graduation. Kennedy determined that the practice was "coercive" and therefore unconstitutional. The decision brought a scathing and passionate dissent from Scalia when he accused Kennedy of embarking on a "psycho journey" in reaching his decision.
The second case was Santa Fe Independent School District vs. Jane Doe decided in 2000. The local high school football team adopted the practice of choosing a player to lead the stadium in prayer prior to games. In a 6-3 decision, the Court ruled that the practice was unconstitutional. Rehnquist led the dissent this time, joined by Scalia and Thomas although they did so on more narrow grounds. They argued that since the person chosen to lead the "prayer" was rotated weekly, there was the possibility that a non-religious person could be chosen. And although a prayer was usually given, there was no mandate that the address be a prayer. Thus, they argued, they could have expressed any thought on the game such as the character of players, or an appeal to sportsmanship and fair play. Rehnquist also asserted that the Court's majority opinion "bristles with hostility to all things religious in public life."
And there lies the crux of the problem. If one reads any commentary on the Establishment Clause, one can easily tell if that writer is coming at the issue from the liberal or the conservative side from seven little words: "wall of separation between church and state." If these words appear in that commentary, chances are they come from a liberal. I dare anyone to find these words anywhere in the United States Constitution. These words come from a letter from Thomas Jefferson he addressed to the Danbury Baptist Convention. Baptists had been traditionally discriminated against in our founding era, but were a growing sect. In fact, the Establishment and Free Exercise Clauses of the First Amendment, written by James Madison, were a political consideration by Madison to garner the votes of the large Baptist population in his congressional district after the Constitution's ratification.
Like the Baptists in Virginia, those in Connecticut questioned whether the amendment's provisions were enough of a safeguard to protect them and they addressed a letter to Jefferson. There is good reason for that- at the time, Connecticut had an established religion as did most states at one time or another. Connecticut was the last state to do away with an officially established religion in the early 1800s well after the ratification of the Bill of Rights. The mere fact that states had established religions at the time of the ratification of the Constitution and the belief that such practice was not repugnant to the Constitution illustrates the fact that the amendment applied only to the federal government, not state governments, and that its purpose was never to remove religion from public life or to create this "wall of separation."
It should be further noted at this point that there is ample and clear-cut historical evidence that our Founders overwhelmingly accepted this practice and that they had a preference for Christianity. When the First Continental Congress met, their first order and resolution was to open their session with a prayer and they hired a local Christian minister to do so the following day after adjourning. During the Revolution, General George Washington consistently insisted that the troops pray to "the Christian God and Our Lord Savior" for guidance. The examples are too numerous to mention here, except one very important one.
One of the first major acts of the new government after the Constitution was ratified, besides the Bill of Rights, was the Northwest Ordinance, considered one of the major documents of our founding. Explicitly stated in that document is the importance of religion in general and Christianity in particular. They even, when dividing the territories, set aside land not only for schools, but religious institutions. And furthermore, if one looks at the original mottoes of many prestigious colleges that pre-date the Revolution (like Harvard, Princeton, Rutgers, Dartmouth, etc.) one cannot mistake the decidedly Christian nature of those mottoes. Many of their original requirements were that students and faculty pray at least once during the week in the chapel- not the temple, not the mosque, not in the woods. Clearly, our founders were less hostile to "all things religion in public life." In fact, you can substitute the word "religion" with "Christian" and still be correct.
Regardless, these two cases (Lee and Santa Fe) dealt with religious invocations in the public school context. In a surprising move, the Obama administration has weighed in on the issue siding with the Town of Greece. They argued that as long as the prayer does not seek to recruit believers to Christianity and does not offend opposing religions, prayers at public meetings should be permissible. They correctly argue that courts- especially the Second Circuit Court of Appeals- are ill-equipped to delve into the specifics of prayers and the motivations behind those prayers. They even went so far as to assert that even if the prayers were administered strictly by Christian clergy, it would not be offensive to the Establishment Clause. As a result, many liberal legal pundits are left scratching their heads over the Obama administration's motives and reasoning here.
In this particular case, there is a very good reason for the government to take this view. One is hard-pressed to find a non-Christian house of worship in Greece, New York, let alone Rochester, from a cursory scan of their Yellow Page directory. Suppose you had a town that was 100% Christian and there were a variety of Christian churches and places of worship in that town. In the interest of some flawed interpretation of the Establishment Clause are we to expect that town to open their city council meetings with a prayer by a rabbi or imam? Or are they simply to do away with the prayer- period?
Obviously, the liberal would say "Yes," and would opt for the doing away with prayer altogether as the best solution lest they potentially offend the lone atheist, or Jew, or Muslim, or practitioner of devil or tree worship who happens to be present at that meeting. The concept of political correctness was not known to our Founders and for very good reason. When it came to religion, despite individual states having established religions, the extent of religious toleration made "political correctness" moot. Surely, there was prejudice against religious minorities when this country was founded and around the time the Bill of Rights was ratified. Some letters from the very people who signed the Constitution and enacted the Bill of Rights, for example, referred to Muslims as "infidels" or "the inferior religions." Judaism was not looked upon nicely either. But, did anyone interfere with their beliefs or their modes of worship? Did they try to convert these minorities? To the contrary, as long as they did not disturb the public order- a requirement of every Christian sect also- they were left alone. Perhaps the only sect that were legally persecuted were those who professed no faith in a Higher Being- what we today call atheists. Yet, this only attests to the religious nature of our Founders, and this country in general.
It would truly be ironic and hypocritical for a Supreme Court to strike down an opening prayer at a city council meeting in Greece, New York considering the Court opens with "God bless this Court" every session. Or that the United States Congress retains a full-time chaplain and begins sessions with an invocation. Clearly, it is likely that Ginsburg, Breyer and Kagan will side against the Town of Greece. Scalia, Thomas and most likely Alito will decide the opposite way. That leaves Roberts, Sotomayor and Kennedy. Kennedy has been all over the map here and was the majority opinion writer in the Lee case. He also joined the majority in the Santa Fe school decision. However, those cases involved public schools. There is a scant record as regards Sotomayor and her only decision while a District Court or appellate court judge indicates that the government should stay out of religion. This can obviously be taken either way as concerns this case. While in the George H.W. Bush administration, Roberts filed a brief in the Lee case arguing in favor of the invocation. However, when filing these briefs on behalf of the Justice Department, one cannot necessarily tell whether they are his personal opinions, or those of the Bush I's administration. If I were a betting person, this case will likely go 6-3 in favor of the Town of Greece with Kagan, Breyer and Ginsburg in the minority. The brief filed on behalf of the Obama administration may be enough to sway Sotomayor, and possibly Kennedy.
Many liberals fear that the reason the Court took this case was to push the "restart" button on the role of religion in the public sphere. The method by doing this would be to abandon the "endorsement" test and adopt a "coercion" test which would be more difficult for the opponents of religion in public life to prove in a court. Given the history of this country and its deep-rooted religious background, would that be such a bad thing? Depending on how they rule in this case- they could stick to the specifics here or deliver a broader opinion- silly lawsuits like the content of Christmas songs in schools may become a thing of the past (one can hope). We may even get to call it "Christmas vacation" rather than the secular "Winter break."
One final thought: In the lead up to this case, there are some liberal voices already declaring a conservative victory. But, instead of basing it on rational deliberation and American history, they are insinuating that the religious make-up of the Court (six Justices are Catholic, three Jewish) will dictate the outcome. This is ignorance personified. This is a case of commonsense and a recognition of American history, not personal preferences.