Great news, small-town Christian zealots! A 5-4 majority of the Supreme Court holds today that you may now dominate your town's political process to the point of insisting that one pray before council meetings without fearing that you've run afoul of the Establishment clause.
Spoiler warning: in the majority were Kennedy, Roberts, Alito, Scalia, and Thomas. There is a strong dissent written by Kagan, who is joined by Sotomayor and Ginsburg. Breyer joined the Kagan dissent, and wrote his own too.
In the case, Town of Greece v. Galloway, the court was asked to consider the town's practice of praying before council meetings. The Town was adamant that anyone could offer the prayer, it didn't have to be Christian, but per the majority's own description of the process:
A town employee would call the congregations listed in a local directory until she found a minister available for that month's meeting.. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too.
Breyer, in his dissent, puts it differently and to my mind, much more accurately:
Greece is a predominantly Christian town, but it is not exclusively so. A map of the town's houses of worship shows many Christian churches within the town's limits. It also shows a Buddhist temple wthin the town and several Jewish synagogues just outside its borders, in the adjacent city of Rochester, New York. Yet during the more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 to 2010), only four prayers were delivered by non-Christians. And all of these occurred in 2008, shortly after the plaintiffs began complaining about the town's Christian prayer practice and nearly a decade after that practice had commenced.
The controlling case on legislative prayer is Marsh v. Chambers, decided back in 1982, in which the Supreme Court allowed the State of Nebraska to pray before legislative sessions. Marsh, a lot of commentators think, allowed the prayer provided that the state showed no religious favoritism. But Kennedy, today, disagrees:
Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.
Alito, Scalia and Thomas wrote their own concurrences, Alito's laying out the particular procedure by which prayers would have to be chosen and Scalia and Thomas as usual tracing the Establishment Clause all the way back to its very own Big Bang in the hands of the Founding Fathers.
The dissent authored by Kagan makes for good reading, though:
I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece's town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece's Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share in her government.
That said, her reasonable view did not prevail. Luckily it doesn't prevent those of us who are uncomfortable with Christian scripture being invoked before each and every sitting of any level of government from forming our own towns and trying to forget that this practice exists.
[Image via AP]