Should the high court have backed town council prayers?

BRAD ASKS:

[Regarding the U.S. Supreme Court's new Greece v. Galloway ruling that allows prayers before town council meetings]: Is the door being nudged open for an ugly discourse on separation of church and state?

THE RELIGION GUY ANSWERS:

Brad fears this pro-prayer decision might stir up ugliness, but The Guy thinks there’s be more of it if the Court had instead barred invocations like those in Greece, New York. Americans generally like prayers to solemnize civic occasions from inauguration of the president on down, and politicians naturally go along. Briefs in Greece’s favor were signed by 85 members of the U.S. House and 34 U.S. Senators. Most were Republicans, but the Obama Administration likewise filed in support. Though civic prayers are popular or considered useful to the republic, that doesn’t mean they’re necessarily good for the Christian faith. Hold that thought.

Politicians aside, many news reports missed that all 9 Supreme Court justices were favorable toward council prayers. The four liberal dissenters, sounding much like the five majority conservatives, stated that local council meetings need not “be religion- or prayer-free” and that’s because “legislative prayer has a distinctive constitutional warrant by virtue of tradition.” Mainly, the liberals protested because Greece loaded up its lineup of prayer-givers with earnest Christians and made little effort to include religious minorities.

The Constitution’s Bill of Rights begins “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Though that commands only Congress, the “incorporation” doctrine (which Justice Thomas rejects) extends this to actions by state and local governments.

Traditionalists say the “establishment clause” only forbids a European-style official church. Separationists embrace the Court’s 1947 interpretation that government cannot show favoritism toward either a particular religion or toward religion in general.

In the 67 years since, the Court has nudged the door open and shut, in what Justice Alito called “our often puzzling” series of church-state rulings. In that time the nation’s religious diversity has increased, especially since the 1965 change in immigration law, and foes of religious faith have become more militant. The key rulings on civic prayers:

*Engel v. Vitale (1962): Outlawed public school students’ recitation of the New York State Regents’ brief, non-denominational prayer to “Almighty God” (decided by 8-1).

*Abington v. Schempp (1963): Ordered Pennsylvania (also Maryland in a companion case) to end public students’ recitation of the Lord’s Prayer along with Bible readings (by 8-1).

*Marsh v. Chambers (1983): Ruled that prayers before sessions of Nebraska’s legislature do not violate the “establishment” ban unless they’re designed to “proselytize,” or “advance” or “disparage” a religion (by 6-3).

*Wallace v. Jaffree (1985): Abolished Alabama schools’ minute of silence for student “meditation or prayer” (by 6-3).

*Lee v. Weisman (1991): Decided a Rhode Island rabbi’s junior high graduation prayer was unconstitutional (by 5-4).

*Santa Fe v. Doe (2000): Opposed public-address prayers before Texas football games from clergy chosen by students (by 6-3).

That brings us to the 5-to-4 decision in Greece v. Galloway, which applies the 1983 Marsh case reasoning about state legislatures to town councils.

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Gasp! NYTimes covers the heart of Kennedy’s argument!

Let’s hear it for The New York Times, a newspaper that can always be trusted to get key information on both sides of hot religious and cultural debates into print.

Wait. Say what?

Actually, in contrast with the CNN Belief Blog editorial that our own Jim Davis parsed this morning, the basic Times news report on the Supreme Court’s Town of Greece, New York v. Galloway, Et Al decision (.pdf) does a pretty good job of allowing readers to hear voices on both sides of this important debate.

The bottom line: This story managed to mention one of the most crucial questions facing the justices, which is, “Is nonsectarian prayer possible?” And after that question comes another church-state puzzle: Who is in charge of determining whether any given believer’s sort-of-free speech is nonsectarian enough to pass muster with state officials?

As always, the crucial swing vote in this 5-4 decision belonged to America’s uncrowned king, Justice Anthony M. Kennedy, a pro-business moral-libertarian country-club Republican who is to some degree an American Catholic.

Readers quickly learn some important facts:

Justice Anthony M. Kennedy, writing for the majority, said that a town in upstate New York had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month” who was almost always Christian and who sometimes used distinctly sectarian language. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion. …

Justice Elena Kagan said in dissent that the town’s practices could not be reconciled “with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.” …

She did not propose banning prayer, Justice Kagan said, but only requiring officials to take steps to ensure “that opening prayers are inclusive of different faiths, rather than always identified with a single religion.”

The situation in Greece, N.Y., is pretty familiar. Town officials insist that all kinds of people are welcome to line up to give prayers — atheists included — but, as the story notes, in practice “almost all of the chaplains were Christian.” Some believers have even made references to offensive concepts such as Jesus dying on the cross.

This has, of course, offended some citizens who have lawyers.

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Pod people: Hobby Lobby and the Mennonite angle

On this week’s episode of the GetReligion podcast “Crossroads,” host Todd Wilken and I discuss media coverage of the Hobby Lobby case.

Or — as our editor Terry Mattingly asked recently — is it really the Hobby Lobby case?

From tmatt’s post:

Now, I realize Hobby Lobby is a nationally known brand and that this punchy name fits better in a headline than that of Conestoga Wood, the cabinetmaking company owned by a Mennonite family in Pennsylvania that is also part of the case. Is it possible that “Mennonites fight for free exercise of religion” isn’t as culture-wars friendly a story line as “giant, rich conservative evangelical company fights, etc., etc.”?

Todd wondered if anyone had explored the Mennonite angle. My basic response: I don’t know. (Yes, such enlightening insight makes for great listening. But I digress.)

However, a quick Google search turned up an in-depth report from Lancaster Newspapers in Pennsylvania that explores the Mennonite faith of Conestoga Wood’s owners. If I missed other coverage on that angle, please share links in the comments section.

From the Lancaster story:

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A First Amendment case that isn’t a First Amendment case?

It’s time, once again, to venture into the dangerous world of religious and political labels. The current news hook for this meditation is, of course, the so-called Hobby Lobby case linked to the religious-liberty implications of the Affordable Care Act.

Speaking of labels: Why is this the Hobby Lobby case, in headline after headline? Why “Hobby Lobby” alone? Why isn’t this, in part, the Mennonite case?

Now, I realize Hobby Lobby is a nationally known brand and that this punchy name fits better in a headline than that of Conestoga Wood, the cabinetmaking company owned by a Mennonite family in Pennsylvania that is also part of the case. Is it possible that “Mennonites fight for free exercise of religion” isn’t as culture-wars friendly a story line as “giant, rich conservative evangelical company fights, etc., etc.”?

Just asking.

But back to my main point. In recent years I have been asking the following question about the labels used in coverage of the rising tide of stories linked to fights about basic First Amendment rights. I recently stated the essential labeling question this way:

What should journalists call a person who waffles on free speech, waffles on freedom of association and waffles on religious liberty?

The answer: I don’t know, but the accurate term to describe this person — in the history of American political thought — is not not “liberal.”

The question can, of course, be turned upside down: What will mainstream journalists call a person who is a fierce defender of free speech, the freedom of association and religious liberty?

The answer, based on the news coverage I have seen in the past year or so is this: It appears that such a person is now either a “conservative” or perhaps an old-school member of the American Civil Liberties Union. As recently as the Clinton White House it was possible for “liberals” as well as “conservatives” to stand together on many, if not most, First Amendment issues — such as support for the Religious Freedom Restoration Act. And these days?

The Los Angeles Times recently published a very interesting, and ironic, story that tried to focus on this mysterious, strangely illiberal turn in American public life. Here is the top of the report:

WASHINGTON – For decades, liberals wielded the 1st Amendment to protect antiwar activists, civil rights protesters and government whistle-blowers.

These days, however, the Constitution’s protection for free speech and religious liberty has become the weapon of choice for conservatives.

This year’s Supreme Court term features an unusual array of potentially powerful 1st Amendment claims, all of them coming from groups on the right. And in nearly every case, liberal groups — often in alliance with the Obama administration — are taking the opposing side, supporting state and federal laws that have come under attack for infringing upon the rights of conservatives.

Then there is this interesting observation near the top of the story:

Conservatives and libertarians say the role reversal at the high court reflects a larger shift in political alliances and attitudes toward government.

“The progressive mind-set sees government as a force for good,” said Ilya Shapiro, a lawyer for the libertarian Cato Institute. So, increasingly, “the energy behind those who are battling with the government” comes from libertarians and conservatives.

“This is a real trend over several years,” said Washington attorney Michael Carvin, a staunch conservative who led the constitutional challenge to the Affordable Care Act. “The liberals are in favor of an expansive federal government, and the conservatives are making the arguments for individual autonomy on speech and religion.”

Of course, when liberals were defending the First Amendment rights of controversial liberals (or Nazis marching through Jewish suburbs, for that matter) their actions were called “liberal” and pro-First Amendment.

Now, with legal case after legal case pitting the First Amendment rights of traditional religious believers against those who are seeking government endorsement of various doctrines emerging from the Sexual Revolution, the use of pro-First Amendment language is being called “conservative” or even — think War on Women images — oppressive.

Thus, the Los Angeles Times notes:

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On Hobby Lobby, how does the Supreme Court measure up?

Aaaaiiieeeee! More “devout Catholics!”

No, wait. The Washington Post seems here to be using the term more responsibly, examining the relationship between beliefs and verdicts. And it doesn’t even use the term as a launchpad for a liberal screed.

The article tied to the Hobby Lobby case is not flawless, but it does try to advance knowledge for people who aren’t court watchers. How well, though, is a good question.

After a painful cliché — “The justices got religion” — the article calms down:

Or at least they seem more open about their faith, appearing before devout audiences and talking more about how religion shaped their lives or guides them now.

As the court this week weighs religious conviction vs. legal obligation in the latest challenge to the Affordable Care Act, those who study the court say the change is hard to quantify but easy to notice.

The Post notes that this is the first-ever U.S. Supreme Court without a Protestant member, instead sitting six Catholics and three Jews. It says the mix may affect the outcome of two cases this week in which two companies — the evangelical-linked Hobby Lobby chain and the Mennonite-owned Conestoga Wood Supplies — must comply with Obamacare’s requirement to supply employees with all kinds of contraceptives.

The “devout Catholics” are justices Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. — although, as in many media, the Post doesn’t say how they’re devout. Nor does it include fellow Catholic Justice Anthony Kennedy among the titled devout. More on that later.

“In what is likely to be the signature case of the term, the issue is not affiliation but devotion,” the Post says. But how to spot or measure devotion is left unclear. Clarence Thomas is a “former seminarian who says God saved his life,” but doesn’t offer details. Antonin Scalia has used the phrase “fool for Christ” and has stated his belief in the devil.

But how often do the justices attend worship? How often do they observe Holy Communion or light Shabbat candles? How many of the basic doctrines of their faiths do they hold? How much do their beliefs affect their everyday lives?

For a couple of them, the answer would be “not much.” Sonia Sotomayor, nominated by President Obama, is not religious, but was raised in parochial schools, like Thomas. Also nonreligious is Elena Kagan, who “nonetheless has reminded Jewish groups that she undertook years of three-days-a-week religious instruction as a child.”

The other drawback to the Post article? It’s vague on how the beliefs of the justices influence their actions, especially while at the bench. In fact, some of the story indicates otherwise:

“It is literally impossible to answer” whether a justice’s religious views affect his or her decision-making, said Richard H. Fallon, a Harvard law professor who is a scholar of the court …

The rise of religious conservatives on the court corresponds with the rise of the religious right in Republican politics. Seven of the 11 justices who joined the court since 1980 were nominated by Republican presidents, including the five Catholic men who are the current court’s most consistent conservatives.

But they were not chosen for their religious affiliations, experts agree. “It didn’t matter that Alito was Catholic,” said Eric Mazur, a professor of religious studies at Virginia Wesleyan College. “What mattered was his ideology.”

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Ready, set, go! Hobby Lobby at the Supremes

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Hobby Lobby gets its hearing before the Supreme Court this morning.

This is big, folks.

As the Los Angeles Times describes it:

WASHINGTON — A challenge to part of President Obama’s healthcare law that hits the Supreme Court on Tuesday could lead to one of the most significant religious freedom rulings in the high court’s history.

USA Today puts it even more dramatically:

WASHINGTON — President Obama’s health care law gets a return engagement at the Supreme Court (this week) in a case full of hot-button issues: religious freedom, corporate rights, federal regulation, abortion and contraception.

Put another way, it’s a case about God, money, power, sex — and Obamacare.

Nearly two years after the court’s 5-4 decision upheld the law and its controversial individual and employer mandates, the justices will consider a different requirement — that companies pay for their workers’ birth control.

In a Supreme Court term that has lacked the drama of last year’s gay marriage and civil rights cases or the prior term’s health care showdown, the so-called “contraception mandate” now commands center stage.

The New York Times characterizes the high stakes this way:

WASHINGTON — The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.

That issue is momentous enough. But it only begins to touch on the potential consequences of the court’s ruling in the case, notably for laws banning discrimination against gay men and lesbians.

The question directly before the justices is whether for-profit corporations must provide insurance coverage for contraception, a requirement of the Affordable Care Act. Hobby Lobby, a chain of crafts stores, challenged the requirement, saying it conflicts with the company’s religious principles.

“If Hobby Lobby were to prevail, the consequences would extend far beyond the issue of contraception,” said Walter Dellinger, a former acting United States solicitor general who filed a brief urging the court to uphold the law.

Like Religion News Service did last week, The Wall Street Journal puts a face on the Green family — billionaire owners of Hobby Lobby — to explain the case:

OKLAHOMA CITY — David Green calls the chain of 560 Hobby Lobby arts-and-crafts stores he founded a religious business.

A 53-employee choir was belting out hymns one recent morning at the headquarters here. Stores close Sundays. Hobby Lobby Stores Inc.’s true owner, Mr. Green says, is God.

That is why Mr. Green will find himself seated in the U.S. Supreme Court on Tuesday for a landmark religious-freedom case brought by his company.

“I have deeply held convictions,” he says “and I should not have to be required by the government to violate my conscience.”

Mr. Green says closely held Hobby Lobby can’t comply with Affordable Care Act regulations that require it to offer certain contraceptives in employee health plans.

The Obama administration disagrees. In court papers, the federal government says for-profit companies like family owned Hobby Lobby aren’t entitled to religious-freedom protections. The Green family’s religious beliefs are sincere, it says, but don’t trump the law.

Tuesday’s Supreme Court hearing will be the second time the health law will be scrutinized by the justices. At issue is whether for-profit companies such as Hobby Lobby are entitled to the same religious protections as people or churches.

If you’re wondering how a former GetReligionista might approach the story, here’s Mark A. Kellner’s lede at the Deseret News National Edition:

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A Hobby Lobby family profile that gets religion

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Before my teenage daughter left on our church’s annual spring break mission trip last week, we made one of our regular visits to Hobby Lobby. Kendall loves to knit and wanted to make sure she had plenty of yarn for the all-day van ride to the U.S.-Mexico border.

As regular customers of the arts and crafts retailer — which is based in Oklahoma City, where we live — my family has followed the national chain’s legal fight over Obamacare’s contraception mandate.

Much of the media coverage is, of course, filled with complicated legalese and robotic talking heads on the right and left.

Enter Religion News Service senior national correspondent Cathy Lynn Grossman with a refreshing profile of Hobby Lobby President Steve Green, whose stores are closed on Sundays to “allow employees time for family and worship”:

(RNS) Once Steve Green sets his path, there’s no turning back.

Not when he and his high school girlfriend, Jackie, totaled their cars playing chicken. “No one turned off,” he said, recalling how he aimed right at her and she just kept coming. A year later, she married him.

Not when he saw no point in college, going directly into his family’s Hobby Lobby craft store business. Green, now 50, rose up from assembling picture frames for “bubble gum money” at age 7 through every job, including cleaning toilets, to president of the $3.3 billion national chain, one of the nation’s largest private companies.

And certainly not now when, he says, the U.S. government is challenging his unshakeable Christian faith and his religious liberty.

Here’s what I like about Grossman’s 1,500-word profile of Green: It puts a real human face on a newsmaker at the center of a case headed to the Supreme Court.

At the same time, it cuts through the noise and rhetoric and describes the legal fight in terms that ordinary readers can understand:

Next week (March 25) Green’s path leads straight up the steps of the U.S. Supreme Court to witness oral arguments in the case Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.

That’s Kathleen Sebelius, secretary of the Department of Health and Human Services. The department included all Food and Drug Administration-approved forms of contraception among services required for insurance coverage under the Affordable Care Act.

Hobby Lobby has provided insurance with contraception coverage for years, paying for 16 of the FDA-approved forms, from barrier methods to pills that prevent fertilization. Not covered: intrauterine devices and morning-after pills such as Plan B. Those, the FDA acknowledges, could prevent a fertilized egg from implanting in the womb.

Blocking implantation would “terminate life” says Green. “We won’t pay for any abortive products. We believe life begins at conception.”

RNS sprinkles personal anecdotes about Green throughout the piece and deftly steps back and allows him to describe his faith — and how it motivates Hobby Lobby’s stand on Obamacare — in his own words:

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Religion ghosts in the politics of abortion? Obviously …

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It happens at least once a year.

A GetReligionista will write a post about media bias in mainstream coverage of abortion (click here for that classic series on this topic by the late David Shaw, media-beat reporter for The Los Angeles Times) and then someone will post a comment saying that abortion is a political, not a religious, issue and that this site should stick to religion. Often, these correspondents will note that the only people who think abortion is a religious issue are crazy fundamentalists and radical Catholics, etc., etc. — an observation that does little to help make their case.

Truth is, lots of people oppose abortion for different reasons. Tomorrow’s annual March For Life will draw thousands of Catholics, evangelicals, Orthodox Jews and the usual suspects. However, those paying close attention will also see banners for pro-life atheists and agnostics, as well as the Pro-Life Alliance for Gays and Lesbians (“Human Rights Start When Life Begins”). Marchers will show up from Feminists For Life, Democrats For Life, Libertarians For Life and a host of other groups from off the beaten journalistic path.

However, it is safe to say that the majority of the marchers will be there for reasons that are based, in part, on their religious convictions. In the United States of America, and lots of other places, that is the statistical reality.

Thus, it was rather strange to see such a faith-free approach used in that New York Times story that ran under the headline, “Parties Seize On Abortion Issues in Midterm Race.” As a reader noted, in an email to this site:

Other than quoting someone from the Faith and Freedom Coalition, there is no allusion that some people see this as an issue of faith or morality.

As a person of faith who is against legalized abortion on demand, this bothered me. It seemed very deliberated on the part of the writer. Most people, however, probably know the basics of the pro-life/pro-choice debate. Does an article mentioning this debate as it pertains to an election have to mention the religious aspect? Or should readers already just know?

That’s a very good question.

Consider the top of the story, for example. Can one address the political clout of those who oppose abortion inside the modern Republican Party without mentioning the “pew gap” or the role played by married, religious women in this cause?

WASHINGTON – When the Republican National Committee gathers for its winter meeting here on Wednesday, the action will start a few hours late to accommodate anyone who wants to stop first at the March for Life, the annual anti-abortion demonstration on the National Mall. And if they need a lift to the meeting afterward, they can hop on a free shuttle, courtesy of the Republican Party.

“We thought it only fitting for our members to attend the march,” said Reince Priebus, the party chairman.

Abortion is becoming an unexpectedly animating issue in the 2014 midterm elections. Republicans, through state ballot initiatives and legislation in Congress, are using it to stoke enthusiasm among core supporters. Democrats, mindful of how potent the subject has been in recent campaigns like last year’s governor’s race in Virginia, are looking to rally female voters by portraying their conservative opponents as callous on women’s issues.

This story does cover a lot of ground, but the reporters are following a strictly political map. At several times it was easy to spot the ghosts that the Times team either didn’t see or made a conscious decision to avoid. For example:

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