SCOTUS and the Establishment Clause

[KarlGauss]

The SCOTUS today released its decision in ‘The Town of Greece New York v. Galloway et al.’. As expected in a case of such constitutional import, the decision has engendered considerable discussion.

My question - and I think it is a question and not a position on which to hold a Great Debate - is this:

Why are arguments in ‘establishment cases’, i.e. those based on the “Establishment Clause” of The First Amendment, not put forth that the very recognition by the Government of a deity per se violates the First Amendment?

As in earlier cases, the Court in Greece v. Galloway is not challenged for taking for granted, and viewing as beyond challenge, the permissibility of such things as a “generic theism” and the “invok(ing of) divine guidance”. It takes as a given that prayer (to deities) is an appropriate means to “seek peace for the Nation, wisdom for its lawmakers, and justice for its people”, and thus implicitly acknowledges that an appeal to some higher power is not just a legitimate exercise but is a meritorious one at that. Phrased differently, the Court is saying that deities are worthy of special mention and appeal. True, SCOTUS is not selecting one deity for special praise; it is doing something just as egregious, and seemingly just as unconstitutional though. It is bestowing special status on prayer and to religious deities in general and by doing so is denigrating the beliefs of those who practise no religion and who do not believe in such deities. It has established a meta-religion, where prayer and its objects are privileged. Could that not form the basis of an ‘Establishment Clause’ challenge for cases like Greece/Galloway?

This is such an obvious approach that I’m sure that either it’s been tried and found wanting by the Court or it’s totally off-base and irrelevant. Can anyone enlighten me, please?

Thanks!

[UDS]

In not forbidding the Town of Greece to open its meetings with prayers, I don’t see that the Court is “privileging” anything, or deeming it to be “meritorious”. After all, the Town of Greece is permitted to do lots of things - operate a tourist bureau, say, or construct a cycle path, or pass a resolution of condolence on the death of some local worthy - and we don’t normally think of these activities as being “privileged” or as having been deemed “meritorious” by the courts.

Nor are the beliefs of those who see no utility or value in prayer being denigrated, any more than the beliefs of those who consider cycling to be a waste of time are denigrated when the courts do not intervene to prevent the construction of cycle tracks.

Don’t get me wrong; I don’t particularly like the practice of opening town government meetings with prayers. I just don’t think that arguments against it which rest on claims that religion is thereby “privileged” and deemed “meritorious” and that the beliefs of the non-religious are “denigrated” are terribly well-grounded in reality. Not forbidding something is not a privileging of that thing or a finding that it is meritorious or a denigration of the beliefs of those who wouldn’t choose to do that thing.

[Flyer]

If somebody’s religion requires a certain form–for example, the Bible makes a reference to praying in Jesus’ name–and if the government forbids that, how is that NOT “prohibiting the free exercise thereof”?

In other words, the Establishment Clause is not the be-all, end-all that it’s commonly portrayed to be in the popular media. It has to be balanced with the other part of the amendment.

[Really_Not_All_That_Bright]

@KarlGauss

It has established a meta-religion, where prayer and its objects are privileged. Could that not form the basis of an ‘Establishment Clause’ challenge for cases like Greece/Galloway?

This is such an obvious approach that I’m sure that either it’s been tried and found wanting by the Court or it’s totally off-base and irrelevant. Can anyone enlighten me, please?

It’s called ceremonial deism.

SCOTUS always includes some number of amateur historians, who look at what one or two people who drafted or discussed a given enactment thought and rule on the basis of their opinions. We often call these people originalists.

There is a lot of evidence for the idea that the early legislatures (including Congress) did not think encouraging prayer was an unconstitutional practice*; for example, they had chaplains, and began their sessions with directed prayers.

So, SCOTUS has held that minimal invocations of Jesus [del]a higher power[/del] do not violate the Establishment Clause. That’s it, really: “the drafters of the Establishment Clause could not have meant to prohibit X because they did it themselves.”

*there’s certainly much more than there is for most issues decided this way.

[KarlGauss]

@Really_Not_All_That_Bright

It’s called ceremonial deism.

<snip - and thanks for that background>

That’s it, really: “the drafters of the Establishment Clause could not have meant to prohibit X because they did it themselves.”

I know you know, but it does raise the question of things like slavery, corporal punishment, debtors’ prisons (I think), and likely many other practices of the time (and practised by some of ‘the founders’ themselves), that are now socially anachronistic and in many cases manifestly unconstitutional.

[Really_Not_All_That_Bright]

Well, slavery was specifically prohibited by the 13th amendment. We didn’t have to reinterpret the Constitution to get rid of it. Debtors’ prisons are not constitutionally prohibited; they were barred by changes to federal and state law (and not entirely barred, since you can still be sent to jail for nonpayment of child support or restitution.)

[KarlGauss]

@Really_Not_All_That_Bright

Well, slavery was specifically prohibited by the 13th amendment. We didn’t have to reinterpret the Constitution to get rid of it.

But that’s the point. The Constitution is malleable, or at least its interpretation and application is. In the same way, the fact the “the founders” encouraged/tolerated prayer does not mean that SCOTUS could not have found differently in Greece Galloway.

[jonesj2205]

@KarlGauss

But that’s the point. The Constitution is malleable, or at least its interpretation and application is. In the same way, the fact the “the founders” encouraged/tolerated prayer does not mean that SCOTUS could not have found differently in Greece Galloway.

I don’t think anyone would argue that if an amendment would be passed banning pre-meeting prayers that they would then be unconstitutional. But I believe you’re arguing if something can become unconstitutional by changing the constitution why can’t it become unconstitutional without changing the constitution.
Which would undermine the point of having a constitution.

[Learjeff]

Is “Congress shall pass no law respecting an establishment of religion” interpreted in case law as “no government shall do anything at all respecting a religion” (other than protect its freedom)?

This is a question based on my ignorance, not a rhetorical one. The words of the Constitution are generally very much affected by past interpretations, and thus it often doesn’t mean to constitutional scholars what it appears to mean based on the simplest interpretation.

My guess is that there is a lot of precedent, and I bet we’d see it mentioned in the decision, on both sides. If anyone can shed a concise bit of illumination here, I’d appreciate it.

In any case, thanks for the thread and comments so far.

[John_Mace]

Key jurisprudence wrt the establishment clause is The Lemon Test.

[Bricker]

@KarlGauss

But that’s the point. The Constitution is malleable, or at least its interpretation and application is. In the same way, the fact the “the founders” encouraged/tolerated prayer does not mean that SCOTUS could not have found differently in Greece Galloway.

No. Slavery was eliminated by adding the Thirteenth Amendment. That’s “malleable,” in the sense that the Constitution itself contains provisions for changing it, for adding to the text of the Constitution to change the Constitution’s meaning.

But it’s distinct from the idea that the Constitution is “malleable,” simply by re-interpreting its words to mean the opposite of what it first meant.

[BrightNShiny]

@KarlGauss

Why are arguments in ‘establishment cases’, i.e. those based on the “Establishment Clause” of The First Amendment, not put forth that the very recognition by the Government of a deity per se violates the First Amendment?

The primary case here is probably Marsh v. Chambers, which upheld legislative prayers, and is cited in the current case. In Marsh, the court said the following:

The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.

I don’t think the language is that clear, but a plausible reading of this is that the court is (was) ok with general, ecumenical sorts of prayers, but prayers which were sectarian would possibly not be okay. So, that’s probably why nobody bothered to advance your argument in the case at hand. Because the court had already said in Marsh that general sorts of invocations that were not sectarian were okay.

Now, why did they court say this? Let’s turn to the them:

It can hardly be thought that, in the same week, Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.

And…

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country. As Justice Douglas observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.”

So, in a nutshell, the framers didn’t think that legislative invocations violated the 1st Amendment, and we’ve been doing it for 200 years without any problems, so there’s no Establishment Clause violation.

Of course, not everybody agrees. In his dissent in Marsh, Brennan said the following:

The Court makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal “tests” that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.

And…

Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. It is contrary to the fundamental message of Engel and Schempp. It intrudes on the right to conscience by forcing some legislators either to participate in a “prayer opportunity,” ante at 463 U. S. 794, with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues. It has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens.

[BrightNShiny]

I’m not sure I would characterize this as ceremonial deism, because the court usually terms ceremonial deism as something that has lost its religious nature. In this case, the court acknowledges that the prayers are religious in nature.

[KarlGauss]

@BrightNShiny

Of course, not everybody agrees. In his dissent in Marsh, Brennan said the following:

@Justice Brennan

Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. It is contrary to the fundamental message of Engel and Schempp. It intrudes on the right to conscience by forcing some legislators either to participate in a “prayer opportunity,” ante at 463 U. S. 794, with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues. It has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens.

How I wish I had said that! Thank you for posting it.

[KarlGauss]

@Bricker

No. Slavery was eliminated by adding the Thirteenth Amendment. That’s “malleable,” in the sense that the Constitution itself contains provisions for changing it, for adding to the text of the Constitution to change the Constitution’s meaning.

But it’s distinct from the idea that the Constitution is “malleable,” simply by re-interpreting its words to mean the opposite of what it first meant.

Indeed, and in retrospect it’s something I shouldn’t have phrased the way I did.

[md2000]

Originally Posted by Justice Brennan
Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause. It is contrary to the fundamental message of Engel and Schempp. It intrudes on the right to conscience by forcing some legislators either to participate in a “prayer opportunity,” ante at 463 U. S. 794, with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues. It has the potential for degrading religion by allowing a religious call to worship to be intermeshed with a secular call to order. And it injects religion into the political sphere by creating the potential that each and every selection of a chaplain, or consideration of a particular prayer, or even reconsideration of the practice itself, will provoke a political battle along religious lines and ultimately alienate some religiously identified group of citizens.

The point though, is that the Greece town prayers do not meet Justice Brennan’s objections. If they have invitational chaplain-of-the-day, and the prayer has no bearing on any particular faction of city hall, then it does not become coercive; rather it celebrates diversity. Rather than Brennan’s “… It intrudes on the right to conscience by forcing some legislators either to participate in a “prayer opportunity,” with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate…”, instead, I see it has how a group would act at a multi-faith service - I don’t believe in God, but I’m not going to make a scene while the priest, the rabbi and the minister do their thing. Nor will the Catholics make a scene while the Rabbi says a prayer…

The obvious question not addressed from what little I’ve read so far is how they find the appropriate prayer source. Did they overlook the local Wiccan Witch, Rabbi or Sikh holy man, or do they simply have none at all within city limits? I’m sure the people who launched the lawsuit would dredge up the necessary diversity easily enough if it existed.

[BrightNShiny]

@md2000

The point though, is that the Greece town prayers do not meet Justice Brennan’s objections. If they have invitational chaplain-of-the-day, and the prayer has no bearing on any particular faction of city hall, then it does not become coercive; rather it celebrates diversity.

Some religions prohibit listening to the prayers of other religions or even other denominations. Not everyone has an ecumenical viewpoint when it comes to these matters. If you think that having to listen to the prayers of another denomination or religion in order to participate in government isn’t coercive, so be it. Not every person feels this way. But your statement validates Brennan’s point, since you’ve dismissed the religious sensibilities of some religions by assuming that they don’t have a religious problem with listening to services from another religion.

Rather than Brennan’s “… It intrudes on the right to conscience by forcing some legislators either to participate in a “prayer opportunity,” with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate…”, instead, I see it has how a group would act at a multi-faith service - I don’t believe in God, but I’m not going to make a scene while the priest, the rabbi and the minister do their thing. Nor will the Catholics make a scene while the Rabbi says a prayer…

As a Hindu who has personally witnessed numerous instances of fundamentalist Christians protesting Hindu public events, I can’t say that my personal experience comports with this. But then, neither of our personal experiences are legal arguments.

The obvious question not addressed from what little I’ve read so far is how they find the appropriate prayer source. Did they overlook the local Wiccan Witch, Rabbi or Sikh holy man, or do they simply have none at all within city limits? I’m sure the people who launched the lawsuit would dredge up the necessary diversity easily enough if it existed.

The district court found that the composition of the prayers was a result of the demographics of the town and that the town didn’t have a specific policy prohibiting non-Christian prayers.

[Digital_is_the_new_Analog]

Does anyone know of any governments that practice inclusive prayers (by using officials from various religions) to occasionally have no prayer, to be inclusive to atheists?

(GQ question. I’m not judging if it’s a good idea or not - just curious if anyone is aware of an entity that does it.)

[md2000]

@BrightNShiny

Some religions prohibit listening to the prayers of other religions or even other denominations. Not everyone has an ecumenical viewpoint when it comes to these matters. If you think that having to listen to the prayers of another denomination or religion in order to participate in government isn’t coercive, so be it. Not every person feels this way. But your statement validates Brennan’s point, since you’ve dismissed the religious sensibilities of some religions by assuming that they don’t have a religious problem with listening to services from another religion.

As a Hindu who has personally witnessed numerous instances of fundamentalist Christians protesting Hindu public events, I can’t say that my personal experience comports with this. But then, neither of our personal experiences are legal arguments.

The district court found that the composition of the prayers was a result of the demographics of the town and that the town didn’t have a specific policy prohibiting non-Christian prayers.

Interesting - as someone raised a Catholic, I can repeat the old joke about St. Peter showing someone around heaven, and they get to the place with the really tall hedge. “Hush,” says St. Peter as they go by, “the Catholics are behind that hedge and they think they’re the only ones in heaven.”

Maybe in Pakistan, Italy, or Ireland the local population can claim that their religion is paramount because the vast majority are one creed; in Saudi Arabia for example, they might even have laws against others. However, in western nations, and especially the immigrant nations like USA, Canada, and Australia, diversity is the rule. Some US states originated because of British intolerance for other Christian sects, let alone different religions.

If you cannot listen to another person’s prayer and respect it, then the problem lies with your own intolerance… The USA is unique in allowing freedom of speech. I can proclaim “there is no god” or “There is no God but Allah” and both should have no repercussion. if you cannot stand back and say “much as I disagree with him on the particulars, I respect his character for holding a belief that guides his life to good…” - well, then the problem is with you. The country is diverse, and anyone who has a problem with that is the one with the problem. the whole point of the USA is that it was founded to provide a tolerant new land. Freedom of religion for everyone was one of the main principles.

Just because you allow someone else to say their prayers does not mean you are joining their religion or insulting your own, unless your religion is extremely intolerant. (Which I don’t associate with Hindus). The fundamentalists that feel that way should go off and build their own community behind a giant hedge.

(the people protesting Hindu events as fundamentalists are just as un-American as Nazis or KKK. Personally, I suspect they don’t even know the difference between a Hindu, Sikh, or Muslim. Just because there might be more of them than you, or they are noisier, does not make them right.)

EDIT: re-reading this, I am using “you” in the rhetorical sense. This is not aimed at anyone. Sorry.

[Really_Not_All_That_Bright]

@BrightNShiny

As a Hindu who has personally witnessed numerous instances of fundamentalist Christians protesting Hindu public events…

In the US?