The bare conservative majority of the Supreme Court voted wrong on official government prayer yesterday. In a 5–4 decision on Town of Greece v. Galloway, the Supreme Court ruled that city councils and other legislative bodies may engage in public prayer at their meetings.
The majority ruled that legislative prayer and other religious practices are acceptable if they follow a historical tradition and if the framers of the Constitution would have accepted it. Tradition and framers' approval would also appear to have justified slavery.
The majority said that the question of whether a city council's prayer endorses a particular religion does not matter; a legislative prayer violates the First Amendment only when it coerces people to support a particular religion. Those of us who do not share the majority religious conviction have a different view of what constitutes coercion, but the Justice Anthony M. Kennedy and the Roberts-Alito-Thomas-Scalia theocrats offered us little support yesterday.
Lyle Denniston of SCOTUSblog summarizes the eight criteria Justice Kennedy's opinion offers for Constitutional legislative prayer:
- Prayer can take place in Congress and state legislatures, where citizens are just observers, and in local council meetings where citizens are often active petitioners.
- Prayer must be ceremonial: councillors can't do it during the official business portion of the meeting.
- Governmental bodies may invite anyone they want to do the prayer, and even pay them (I need to get a gig as a traveling atheist chaplain).
- Governmental bodies can't dictate the content of official prayers. The prayers need not be generic.
- Governmental bodies may not proselytize, may not require participation, and may not razz those who do not participate (hmm... would that include Rapid City councilman Chad Lewis calling an atheist dissident a bully?).
- Government prayers can't attack a particular religion (or lack thereof, I'm assuming), but the city council doesn't have to make an extra effort to bring in prayer leaders of different faiths. If the only people who show up to fluff their faithful feathers are the local Jesus crowd, so be it.
- The audience must be mostly adults (there's a different standard of coercion when you're talking to children).
- The Court will determine violations of the Establishment Clause only by looking at "a pattern of prayers," not the content of any individual prayer. One overly Jesusy prayer doesn't throw out the practice; challengers to city prayer must demonstrate a pattern of coercion against the unorthodox.
Under these standards, the Rapid City Council and the Meade County Commission can probably continue opening their meetings with their demonstrations of piety. However, Justice Kennedy's opinion reminds us that invocations of deities in public meetings should not be religious chest-thumping:
In rejecting the idea that legislative prayers must be nonsectarian, the Court does recognize a constraint on such prayers, he adds.
“The purpose of legislative prayer is to lend gravity” to sessions where “the divisive business of governing” will take place.
The prayer tradition reflected in [Marsh v. Chambers] permits those delivering the prayers “to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths” [Mark Walsh, "A 'View' from the Court: A Divided Ruling on Prayer, But No Fireworks," SCOTUSblog, 2014.05.05]
While the Town of Greece v. Galloway ruling authorizes official behavior that I find offensive, Justice Kennedy lays out criteria that make that official behavior more tolerable. Prayer from the public podium is not meant to score points with one's gods or voters. Performed properly, it should reinforce the seriousness of the business at hand and seek common ground with all citizens. Those criteria tell me that, even if the Supreme Court isn't going to shut down city council prayers, city councilors should still select their public prayers carefully to subordinate their pious urges to their civic duties and the common good.