Monday, May 5, 2014

Supreme Court: A 5-4 Ruling Worse Than Bush v. Gore?

I guess it depends on what you think America needs protection from, and by whom. Lyle Denniston of SCOTUSblog:
Stopping just short of abandoning a historic barrier to religion in government activity, a deeply divided Supreme Court ruled on Monday that local governments may open their meetings with prayers that are explicitly religious and may turn out to be largely confined to expressing the beliefs of one faith.

Narrowly defining what is not allowed in such prayers, the Court said they may not be used to praise the virtues of one faith and may not cast other faiths or other believers in a sharply negative light. Courts have no role in judging whether individual prayers satisfy that test, but can only examine a “pattern of prayer” to see whether it crossed the forbidden constitutional line and became a form of “coercion.”

The majority clearly moved the “coercion” test to the forefront of analyzing when government and religion are too closely intertwined. The alternative test — whether government action “endorsed” a particular faith — was nearly cast aside as taking too little account of the role of religion in America’s history and civic traditions.

So... just how far did they go? Kennedy's opinion, treated as controlling because it bridged a gap between two conflicting opinions of the Court's majority, was described by Denniston as follows:
Treating the Kennedy opinion as controlling, because it spoke to a middle-ground approach between blocs of Justices who wanted to go further in one direction or the opposite, this is the constitutional prescription it provided for legislative prayers:
  • 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 lead the prayer.
  • 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.
(Bolds mine. - SB)

Well, there goes the First Amendment, at least for public meetings of legislatures...

AFTERTHOUGHT: This is almost a "Catholics vs. Jews" ruling, with the exception of Sotomayor. I wonder if we will begin to see religious bloc voting in more rulings by this religiously extremely lopsided Court.

AFTERTHOUGHT: Here is the ruling (.pdf).

MORE PERSONAL AFTERTHOUGHT: A brief discussion with Stella shortly after I completed this post reminded me forcefully just how difficult it is for even the most broadminded of American Christians to perceive a problem with the constant presence of explicitly Christian prayer preceding a government event in a society that at least theoretically advocates genuine freedom of religion.

I am a UU... Unitarian Universalist... and the omnipresence of Christian prayer at nongovernmental events is starkly apparent to me. If Christian prayers begin also to precede Houston City Council meetings, HISD School Board meetings, various county government events, METROLift advisory committee meetings, etc., I am certain, justifiably or otherwise, that I will feel excluded. (ADDED: If you think UU is an obscure religion, please note that three or [arguably] four US presidents... John Adams, John Quincy Adams, Millard Fillmore and [arguably] Thomas Jefferson... were Unitarians. That's about 9 percent of America's presidents.)

Stella sees it as no big deal. I confess I was surprised, but I should not have been: people brought up Christian and still surrounded mostly by Christians are very likely to see "Christian" as "normal," and fail to react at the consistent omission of prayers by people of other religions. Let me re‑emphasize: Stella is about the least prejudiced Christian I know, which means her non‑reaction is even more to be expected from Christians less involved with people of other religions. If you are inclined to think non‑Christians need no explicit legal protection from the normalization of Christianity in the periphery of governmental events, I am here to tell you: we do, in fact, need such a shield. Until now, we assumed with good reason that the Constitution, specifically the First Amendment, provided that shield. Now I'm not so sure.


  1. It never ends, does it? During the meetings of the Constitutional Convention in Philadelphia there was a faction, including Ben Franklin if I remember, which proposed opening each day's session with a prayer. The majority of delegates thought this a bad idea and the proposal was voted down. But Christians have kept trying to insert their religion into our secular government ever since.

    An atheist living in the Bible Belt, I can tell you just how oppressive it is to always be the outsider, not a memeber of the club. They even publish and distribute directories of "Christian" businesses so you can patronize the "right" people. Bad enough that local government is drenched in this atmosphere without making it a formal instituion.

    1. pj, I cannot imagine a more frustrating situation (from a religious standpoint) than being an atheist in the Bible Belt. A fair number of UUs are de facto atheists; they (we?) are wholly accepted, at least by the congregation I used to attend. I am balanced on the edge: part of me senses a Presence; another part of me says that's just an artifact of my brain's operation. I certainly don't need anyone in, or on behalf of, my government "helping" me to decide; religion is at least as much a personal matter as sexuality, and it strikes me that many of the same people wish to decide both matters for us. (UUs are officially "welcoming"; about half the congregation I belonged to are LGBT. I happen to be straight. If I were gay, I'd be so out and loud about it you couldn't stand me. :-) )

      I suspect there was a time when America was one of the more accepting places a religious nonconformist could settle. Not today, though. I went to an early music workshop about 20 years ago and was told by another attendee that my religion was "dangerous." Since then, I've tried to live up to that part of our reputation...



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