After the marshal on Monday spoke the traditional “God save the United States and this honorable court,” the Supreme Court ruled that the Upstate New York town of Greece does not violate the First Amendment’s prohibition of “establishment of religion” by opening its board of supervisors’ meetings with a prayer. This ruling would not have scandalized James Madison and other members of the First Congress, which drafted and sent to the states for ratification the First Amendment and the rest of the Bill of Rights. The Congress did this after hiring a chaplain.
Three decades have passed since the court last ruled on the matter of prayers during government meetings. In 1983, the court held:
“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”
Since then, however, many Americans have become more irritable and litigious and less neighborly. Also, there are many more nonbelievers. And the court has made establishment-clause jurisprudence more labyrinthine with nuances such as the “endorsement test”: What government behavior touching religion would a reasonable observer see as endorsing — or disapproving — a particular religion or religiosity generally?
Until 1999, Greece’s board usually opened its meetings with a moment of silence. Since then, it has invited local clergy, most of whom are Christians, to deliver prayers, most of which have had Christian content. The court has never held that legislative prayer must be nonsectarian. But the two plaintiffs against Greece argued that the predominance of Christian voices (there were others — Jewish, Baha’i and a Wiccan priestess who prayed to Athena and Apollo, rather fitting for a town named Greece) constituted establishment of Christianity as the town’s religion. A lower court agreed.
On Monday, the Supreme Court split 5 to 4 in reversing that court. The majority held that ceremonial prayer — an encouragement to gravity and sobriety — is not harmful to the plaintiffs, who felt somehow coerced when present at public prayers, and who said such prayers are necessarily divisive. The court should have told them: If you feel coerced, you are flimsy people, and it is a choice — an unattractive one — to feel divided from your neighbors by their affection for brief and mild occasional expressions of religiosity.
The court prudently avoided the potentially endless task of adumbrating criteria by which local governments, acting as piety police, could finely calibrate a constitutionally acceptable quantity of devoutness in public prayers, or could draw a bright line between acknowledging and worshiping a divinity. So, the court can expect to hear again from militantly aggravated secularists.
Taking offense has become America’s national pastime; being theatrically offended supposedly signifies the exquisitely refined moral delicacy of people who feel entitled to pass through life without encountering ideas or practices that annoy them. As the number of nonbelievers grows — about 20 percent of Americans are religiously unaffiliated, as are one-third of adults under the age of 30 — so does the itch to litigate believers into submission to secular sensibilities.
The United States would be a more congenial place if it had more amiable atheists who say, as one such did, that “it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.” Some will say Thomas Jefferson was a deist, not an atheist. Atheism, however, simply involves having no theism, and deism — belief that a celestial Clockmaker wound up the universe and set it ticking — is too watery a theism to count. Any religion worthy of the name explains, enjoins and consoles; undemanding deism merely explains, and does this minimally. Deism purports to explain the universe; so does the big bang theory, which is not a religion.
Still, Jefferson made statesmanlike accommodations of the public’s strong preference for religious observances. As president, he attended Christian services conducted in the House of Representatives. They also were conducted in the Supreme Court chamber and the Treasury building. Jefferson attended a service in the House two days after praising (in an 1802 letter) “a wall of separation between church and state.”
Jefferson was no slouch when it came to asserting rights. But Greece’s prickly plaintiffs, having taken their town to court, might now ponder his example of relaxed, friendly respect for practices cherished by others and harmless to him.