Welcome back to the First Amendment wars, an increasingly active front in our nation’s Culture Wars. Yesterday was a big church-state day at the U.S. Supreme Court, with the justices hearing testimony on the Town of Greece v. Galloway — yet another case centering on prayer in public life.
If coverage of this event was not prominently displayed in your local newspaper today, there could be a logical reason for that. Mainstream journalists tend to be pro-First Amendment, but for cultural reasons they may feel conflicted when writing and editing stories about the free speech rights of conservative religious believers.
The bottom line: It’s hard, even for a true liberal, to tolerate the free speech of people that you consider intolerant.
You can see the conflicts pretty clearly in the USA Today report on the testimony and that report followed a pretty solid A1 news feature by the same crew on this topic that ran ahead of the showdown in court.
This is confusing stuff and accurate stories will reflect that reality.
The top of the advance feature was an absolute classic, in the category of ironic anecdotal ledes. Classic.
GREECE, N.Y. — The Rev. Lou Sirianni opened the most recent monthly meeting of the Greece Town Board with a prayer that reached back 239 years.
“Be thou present, O God of wisdom, and direct the councils of this honorable assembly,” he began, quoting from the Rev. Jacob Duche’s invocation before the first Continental Congress in 1774. The prayer ended, “All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Savior.”
Not everyone in Greece — not even everyone at the sparsely attended town board sessions — prays to Jesus or believes in his saving powers. Some don’t pray at all. Many more don’t see a place for it at government meetings.
Thus, the court case. The USA Today team did a fine job, in a small amount of space, of summarizing the previous prayer-wars battles, showing why this topic tends to tie justices in knots. This following passage contains the key word, for those assigned the journalistic task of following the arguments this week in the high court. Can you spot it?
Most state legislatures open their sessions with a prayer, nearly half of them with guidelines. Many county legislatures open meetings with a prayer, according to an informal survey by the National Association of Counties. National data on prayer practices at the city, town and village levels do not exist.
The Supreme Court cracked down on prayer in schools in the 1960s, ruling against Bible readings, the Lord’s Prayer or an official state prayer.
In Lemon v. Kurtzman, a 1971 case involving religion in legislation, the high court devised what became known as the “Lemon test.” Government action, it said, should have a secular purpose, cannot advance or inhibit religion and must avoid too much government entanglement with religion.
Later, the story notes, the court “gave a green light” to legislative prayers that do not advance or attack any particular faith.
That raised a question that loomed over the Town of Greece debates.
How does the government decide when a prayer advances a faith, or attacks another, without becoming “entangled” in arguments about the doctrines woven into the words of the person who is praying?
Also, there are citizens who will be offended by any prayer whatsoever, and they have rights. And then there are citizens who are highly offended, and believe their First Amendment rights have been attacked, when they are denied the right to pray according to their consciences and, in effect, are ordered to be silent or to deliver prayers that fit inside an interfaith doctrinal box built by the state.
A key fact: For many years, these town leaders only allowed and/or asked Christians to pray before these meetings. That policy has changed, during the years of arguments leading up to this visit to the U.S. Supreme Court. Town leaders now say that those asked to pray are free to say whatever they want to say. In other words, a wider variety of citizens now have a chance to be offended by prayers in other traditions (Jewish, Wiccan, Baha’i, etc.).
Spot any familiar themes in this USA Today passage?
A majority of conservative justices clearly didn’t want governments to get more involved in parsing which prayers are OK and which go too far toward endorsing one religion or coercing those in attendance. That bodes well for the town, which defended its practice based on more than two centuries of U.S. history.
But the case, Town of Greece v. Galloway, appeared to be a difficult one for several justices. They sought to balance that lengthy history against the town’s often explicit prayers, and they worried that strict guidelines on prayer-givers — such as those used by Congress and many state legislatures — might be worse than the town’s anything-goes policy.
“Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way,” Justice Elena Kagan said near the conclusion of the hour-long argument. “And every time the court gets involved in things like this, it seems to make the problem worse rather than better.”
Wait a minute.
Only “conservative” justices are worried about the entanglement issue? Only “conservative” justices are worried about government leaders deciding which prayers are acceptable and which are not? Justice Kagan said she wanted to promote peace and harmony on this issue (good luck with that), but it was also clear in the USA Today report that she thought it might not be wise for the justices to grant new prayer-editing rights to state officials.
In other words, the defense of free speech and religious liberty can lead to conflict between people with sincere beliefs that clash. Thus, while the occasional sectarian prayers:
… concerned several liberal justices, such as Kagan and Justice Sonia Sotomayor, the potential solutions struck most of them as worse. Justice Anthony Kennedy, who could be the swing vote, worried that enforcing standards for clergy to follow “involves the state very heavily in the censorship and the approval or disapproval of prayers.”
“Involves” the state? How about “entangles” the state?
So what to do? Under equal access principles from similar disputes, the justices could simply say that government bodies have the right to ban all prayers, period. However, that would have to be considered an action that singled out religious speech for “content discrimination” — as opposed to equal-access laws that offer the chance for all religious and non-religious groups to be equally denied space in the public square (such as the right to hold meetings in a public building, such as a public school).
So what to do? I thought this passage was especially effective at capturing the dilemma, with a justice firing a biting question at the attorney for those opposed to the town’s current policies.
… (V)irtually no prayer would satisfy everyone, leaving the court little option but to remove prayer entirely from government meetings — something they clearly did not want to do.
“Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer — Wiccans, Baha’i,” Justice Samuel Alito directed Douglas Laycock. …
“And atheists,” Chief Justice John Roberts chimed in.
“Throw in atheists, too,” Justice Antonin Scalia said.
The justices didn’t seem satisfied with other potential compromises, such as a multi-religious rotation of clergy or separating board meetings into separate business and public forums. But they kept returning to what many considered the worst scenario: governments policing prayers.
“Your position is that town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing. That’s your position?” Kennedy asked Laycock, somewhat incredulously.
One more First Amendment wrinkle: The Obama administration is backing the town.
In the end, kudos to the USA Team for packing lots of accurate confusion and church-state tension into a very small space. Compare this story with whatever ran in the newspaper delivered to your doorstep or computer.