By Shobana Subramanian.
This fall the constitutional spotlight will be shifting from the Fourteenth Amendment to the First. The Supreme Court has granted certiorari to a number of establishment clause cases that are once again questioning the relationship between church and state.
The first of these cases is Town of Greece v. Galloway, scheduled for oral argument in early November. The town of Greece, located in upstate New York, customarily opens its town hall meetings with prayers given by local clergy or citizens. Susan Galloway and Linda Stephens, who are Jewish and atheist respectively, sued the town on the grounds that the overtly Christian prayers offered at a majority of the town hall meetings affiliated the town with Christianity and alienated non-believers, many of whom are required to attend the meetings.
The Second Circuit Court ruled in favor of Galloway, using what has come to be known as the “endorsement” test. The test was used previously in cases such as Allegheny v. ACLU (1989), when a crèche displayed by a county courthouse was ruled unconstitutional, while a menorah placed outside the city-county building was ruled constitutional. The Supreme Court determined that the former was an endorsement of Christianity while the latter was not an endorsement of Judaism, since the menorah was not displayed during the Jewish holiday season but during Christmastime. With regards to Greece, the Second Circuit Court declared that the overtly Christian language used in the prayers affiliated the town with one particular religion to the extent of violating the Establishment Clause. The petitioners, however, point out that the town invited members of several different religious groups, including those of the Islamic and Wiccan faiths, to deliver prayers at meetings. Galloway argues that the town only did this in response to the suit.
The Supreme Court typically uses the Lemon test, derived from its decision in Lemon v. Kurtzman (1971), to determine whether the government has violated the Establishment Clause. The Lemon test consists of three prongs: (1) the government’s action must have a secular purpose; (2) it must not advance or inhibit religion; (3) and there must be no excessive entanglement of government with religion. If even one of the three prongs is violated, the action is ruled unconstitutional. The petitioners question the Second Circuit’s decision because it ignores the fact that the town hall prayers are not meant to proselytize or criticize nonbelievers; however, as the respondents argue, the Court cannot consider the intent of the town since motive in legislative actions is generally difficult to determine. Regardless, the second prong of the Lemon test considers the overall effect of the action, regardless of the motive behind it.
Although the town insists that it values and displays all religions equally, promoting religion—any religion—excludes atheists like Linda Stephens. There is no question that, compared to much of the world at least, Americans tend to be more religious. But is that sufficient grounds for the continued entanglement of government with religion? The petitioners are correct in saying that the United States has a long history of legislative prayer. The Founders invited chaplains to recite prayers before their meetings, despite the clear diversity of religion that was already causing conflict at the time. When confronted with the decision of whether or not to have a prayer recited at the first session of the Continental Congress, Samuel Adams famously said, “I hope I am no bigot, and can hear a prayer from a gentleman of piety and virtue who is a friend to his country.” The petitioners use Adams as an example of what the tolerant religious minority ought to be, in order to accuse Galloway of hypocritically advocating tolerance with intolerance. But advocating governmental secularism in no way qualifies as intolerance. It is merely the desire for the separation of church and state, rather than an attack against the former.
The Establishment Clause, in the eyes of the Founders, might have been referring only to state-mandated religion and religious taxes. An originalist would take the Founders’ intent into account, and looking at the actual text of the First Amendment, determine that legislative prayer is not a “law respecting the establishment of religion” but merely the free expression of existing religious beliefs by people who happen to be involved in government. The Lemon test takes the Establishment Clause a step further in prohibiting excessive entanglement of government with religion, a concept never mentioned in the text of the Constitution.
In Marsh v. Chambers (1983), the Supreme Court ruled that it was constitutional for the Nebraska legislature to hire a chaplain paid with government funds. The reasoning behind this ruling was the historical context behind the Establishment Clause. Because of the historical precedent of legislative prayer, the Court did not use any of its usual tests to determine its constitutionality. Justice Scalia, currently the most outspoken advocate of originalism on the Court, summed it up best: Quoting a teacher he overhead in a high school English class, he said, “When you read Shakespeare, Shakespeare’s not on trial. You are,” and followed it up with, “What Shakespeare is to the high school English student, the society’s accepted constitutional traditions are to the prudent jurist. He doesn’t judge them, but is judged by them.” If legislative prayer were to be judged by historical precedent, it would of course be constitutional. The Constitution would only be what it has meant for the last two and a half centuries. Legislate prayer is viewed as an exception, a loophole that society has come to accept, merely because it has always existed, and if challenged, only by a small minority.
But I reject this history. It does not make sense to separate legislative prayer from the myriad of other church-state conflicts drawing fire in our political system—consider what has become of school prayer, despite the numerous attempts to reinstate it. Today, it is practically nonexistent, and rightfully so. The government should not be exempt from the standards of secularity placed on public schools and universities, who are not allowed to affiliate with any religion. In Greece, NY, it is mandatory for students of certain grade levels to attend town hall meetings in order to fulfill a civic studies requirement. Legislative prayer essentially forces them to take part in religious activity. It is not up to government to determine what level of participation, passive or otherwise, constitutes religious activity. It is up to the individual, who in this case is deprived of that choice.
The town of Greece argues that the community members who volunteered to give the prayers were mostly Christian because of the demographic makeup of the town, and therefore they adequately represent the town. But only half of Greece identifies as religious. While it is true that the vast majority of those who are religious in Greece are Christians, what about the atheists and agnostics? The town’s claim that the prayers are representative of its citizenry is false because the practice of legislative prayer itself excludes over half of Greece’s population. By reciting prayers at the start of every town hall meeting, Greece is establishing a town religion—Christianity—and, if not forcing its citizens to adhere to it, certainly affiliating itself with that religion.
And it is because of this affiliation that the Supreme Court ought to rule legislative prayer unconstitutional. It is one thing to associate with religious groups in a secular way, such as in Van Orden v. Perry (2005), when a statue of the Ten Commandments was deemed constitutional because of its historical value to the Texan community. Greece, on the other hand, cannot even pretend to have a secular purpose. There is nothing secular about prayer.
The U.S. government has a long tradition of using religious references to sanctify America’s existence and policies. Despite numerous lawsuits, many schools require students to recite the Pledge of Allegiance, which, since 1954, has referred to God. According to our currency, “we” as a nation (or whoever uses American money) “trust in God.” When the Democratic Party removed the word “God” from its platform in 2012, the backlash from delegates at the Democratic National Convention was so strong that it was almost immediately reinstated. Striking down legislative prayer may not solidify the barrier between church and state, but it would send a message to our government, and to the American people, that America is not a religious country, but a country made up of many religious people.