A number of social conservatives and Republican politicians celebrated the Supreme Court’s 5-to-4 ruling yesterday in Town of Greece v. Galloway, allowing local governments to open their meetings with an overtly religious prayer. This is the danger of assessing a decision by its outcome. If they care to look more closely, they may be dismayed — even horrified — by the court’s decision to micromanage the content of prayer in assessing constitutionality.
The test, Justice Anthony Kennedy majority opinion, is now whether the prayer is “coercive.” Lyle Denniston explains, using Kennedy’s opinion as controlling, what the new prayer test will look like:
First: Such prayers are not confined to meetings of Congress or state legislatures, but may also be recited in the more intimate and familiar setting of local government meetings.
Second: The prayer portion of the meeting must be conducted only during a ceremonial part of the government body’s session, not mixed in with action on official policy.
Third: The body may invite anyone in the community to give a prayer and (if it has the money) could have a paid chaplain. The officials on the body may also join in the prayer by bowing their heads or showing other signs of religious devotion, such as crossing themselves.
Fourth: The body may not dictate what is in the prayers and what may not be in the prayers. A prayer may invoke the deity or deities of a given faith, and need not embrace the beliefs of multiple or all faiths.
Fifth: In allowing “sectarian” prayers, the body’s members may not “proselytize” — that is, promote one faith as the true faith — and may not require persons of different faith preferences, or of no faith, to take part, and may not criticize them if they do not take part.
Sixth: The “sectarian” prayers may not disparage or discriminate against a specific faith, but officials need not go to extra lengths to make sure that all faiths do get represented in the prayer sessions — even if that means one faith winds up as the dominant message.
Seventh: Such prayers are permissible when most, if not all, of the audience is made up of adults — thus raising the question whether the same outcome would apply if the audience were a group of children or youths, such as the Boy or Girl Scouts, appearing before a government agency or a government-sponsored group. (The Court did not abandon its view that, at public school graduations or at events sponsored by public schools, prayers are not allowed because they may tend to coerce young people in a religious way.)
Eighth: A court, in hearing a challenge to a prayer practice, is confined to examining “a pattern of prayers,” and does not have the authority to second-guess the content of individual prayer utterances. In judging such a pattern, the proper test is not whether it tends to put forth predominantly the beliefs of one faith, but whether it has the effect of coercing individuals who do not share that faith.
This is nothing to celebrate, people of faith. You’re going to have courts deciding, for example, whether a “pattern of prayers” merely invokes the deity or if it goes so far as to denigrate other faiths. (Does a recitation of the Ten Commandments flunk by insisting on monotheism, and therefore, implicitly criticizing polytheism?) When does proud sectarianism become proselytizing? This, frankly, sounds like a nightmare to implement, a full-employment act for lawyers and yet another patch of quicksand in First Amendment jurisprudence in which it is impossible to assess what is going to pass muster and what won’t. Kennedy blithely declares:
If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. But the showing has not been made here, where the prayers neither chastised dissenters nor attempted lengthy disquisition on religious dogma. Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood. But in the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.
Good luck, town councils and state legislatures of America, in following that narrow path to judicial approval. Justice Samuel Alito, while concurring in the result, cautioned: “Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer.” As for inviting outside clergy, he points out: ” Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list?”
Ironically, the upshot of the decision will be that courts will be hopelessly intertwined in a process of watering down expressions of faith while refusing to remove them entirely from the public sphere. Those who applaud the ruling should take another look and decide if they really wants judges deciding whether a prayer is too distinctly religious.