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.
As CNN noted, Kennedy argued that the U.S. Constitution does not guarantee that citizens will not be exposed to offensive speech. At that point, as journalists covering this story have noted, Kennedy added several layers of history to his argument. To no one’s surprise, other justices found clashing themes from America’s complicated religious history to toss right back at him.
This leads to the crucial material in this story. While it’s located pretty deep into the text, the fact that it’s in the report at all is a plus.
Let us attend.
In a long footnote, Justice Kagan disputed that assertion, saying some of the most prominent members of the founding generation — George Washington, Thomas Jefferson and James Madison — took pains to keep sectarian language away from public life. “The demand for neutrality among religions is not a product of 21st century ‘political correctness,’ ” she wrote, “but of the 18th century view.”
But Justice Kennedy said legislative prayers may have sectarian content and need not “be addressed only to a generic God.” He added that it would be perilous for courts to decide when prayers crossed a constitutional line and became impermissibly sectarian.
“To hold that invocations must be nonsectarian,” he wrote, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”
If only Kennedy had used the word “entangled.”
Once again, journalists are finding themselves in “equal access” terrain, as mapped out by the remarkable left-right church-state coalitions of the Clinton White House years. The key is that state officials, when faced with these kinds of First Amendment tensions, face three options.
They could, in this case, ban all forms of prayer or pre-meeting editorializing (or all forms of religious holiday decorations on courtyard lawns, to cite another example), equally with no discrimination shown toward a particular form of speech. They could also say that a forum has been created in which as wide a variety of voices as possible can be heard, with no favoritism or animosity shown to a particular point of view. That appears to be what Town of Greece leaders have said they are trying to do, while some citizens have continued to be offended.
However, what the state cannot do — the key Kennedy quote points to this — is allow or even require government officials to become involved in setting guidelines for what kinds of prayers are created, approved and/or sponsored by the government and which ones are not. The government must avoid “entanglement” in these doctrinal questions, thus protecting the separation of church and states.
Is it asking too much for trained Supreme Court-level reporters to have recognized the “equal access” content of this dispute? Maybe. Maybe not.
However, whatever one thinks of Kennedy’s point of view, this quote is central to his argument — pointing toward a clash over why government officials should suddenly be empowered to vote thumbs up and thumbs down on the content of prayers in the public square.
And there is that question again: Is nonsectarian prayer possible? Try to imagine a prayer that is not offensive to, well, atheists or Southern Baptists, Unitarians or Muslims, tenured professors at Ivy League schools or Catholic Supreme Court justices (especially those who go to Mass).
Oh, and Kennedy did say that there ARE doctrinal limits on acceptable prayers in this public setting.
Justice Kennedy did suggest that some prayers may be unacceptable if offered consistently, including ones that “denigrate nonbelievers or religious minorities, threaten damnation or preach conversion.” But without proof of “a pattern of prayers that over time denigrate, proselytize or betray an impermissible government purpose,” he wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”
But once again, note those phrases such as “offered consistently” and “patterns of prayer over time.” In other words, at some point free speech can turn abusive. However, giving officials the power of the state to define what doctrine is acceptable in public life and what doctrine is unacceptable is illiberal and offensive, period.
That’s the heart of Kennedy’s argument and, thus, that content needed to be included as one — repeat ONE — essential point of view in mainstream news reports on this decision.
Bravo to Times editors for getting that part of the argument into print. Did anyone see that quote in other mainstream reports?
IMAGE: Part of the “lawgivers” frieze at the U.S. Supreme Court.