A recent decision by the U.S. Supreme Court on the subject of government invocations opens the door to potential new horizons for freedom of religious expression in the United States. The decision by the
High Court in a case out of Greece, New York, establishes a new legal barometer for measuring the extent to which religious speech is permitted in the public square.
The lawsuit was brought by two residents of Greece who objected to prayers offered by local clergymen prior to meetings of the town board. The plaintiffs claimed that the prayers were "offensive" and "intolerable" and amounted to government establishment of religion in violation of the First Amendment to the U.S. Constitution.
A U.S. District Court Judge upheld the town board's prayer practice, saying that it was consistent with Supreme Court precedent. However, the Second Circuit Court of Appeals struck it down, ruling that it
impermissibly advanced Christianity. While the Second Circuit panel agreed that sectarian prayers were not inherently a violation of the Establishment Clause, the judges ruled that too many of the prayers were Christian in nature. The appeals court panel ruled that the fact that most of the local ministers were Christians resulted in an unconstitutional government affiliation with the Christian religion.
In a decision handed down in early May, the U.S. Supreme Court reversed the appeals court decision and upheld the town board's prayer policy. In a 5-4 decision authored by Justice Anthony Kennedy
, the High Court reaffirmed its longstanding Marsh v. Chambers
decision which endorsed ceremonial prayers offered before meetings of government bodies.
In this Town of Greece v. Galloway
decision, the Supreme Court restated that legislative prayer "has long
been understood as compatible with the Establishment Clause" and "reflects values [which have been] long part of the Nation's heritage." The judges observed that the Framers of the Constitution "considered prayer a benign acknowledgment of religion's role in society," and pointed out that the First Congress voted to appoint and pay official chaplains shortly after approving the language which would become the First Amendment of the Bill of Rights.
The Supreme Court majority reasserted the principle enunciated in Marsh
that legislative prayers are not constitutionally troublesome so long as they are not used
to proselytize, or to advance or disparage any particular faith or belief. "Prayer that is solemn in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark upon the fractious business of governing, serves [a] legitimate function."
Justice Kennedy sharply rebuked a legal theory advanced by attorneys for atheist groups that prayers must be "nonsectarian," and thus purged of any reference to Jesus Christ or to Christianity. Kennedy insisted that the High Court has never implied that prayer violates the Establishment Clause "any time it is given in the name of a figure deified by only one faith or creed."
"To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors
of religious speech, a rule that would involve government in religious matters...," Justice Kennedy wrote." Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior."
"It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere," Kennedy continued. "Government may not mandate a civic religion that stifles any but the most generic references to the sacred any more than it may prescribe a religious orthodoxy....Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates..."
The most significant aspect of the Greece
decision was the institution by the court majority of a new legal standard for determining whether government association with religious speech constitutes an unconstitutional establishment of religion. Justice Kennedy seized on this litigation to discard the "endorsement test" created by former Justice Sandra Day O'Connor, who was previously the swing justice on the High Court.
Under the endorsement test, governmental involvement with religious expression is unconstitutional if it appears to endorse a specific faith, or results in individuals
feeling like "outsiders." It has been used repeatedly as a legal weapon by atheist organizations to challenge religious speech in public settings if they could demonstrate that someone was "offended" by it.
Kennedy has long despised the endorsement test, and with the support of a majority of his colleagues, has substituted a new legal standard--the "coercion test." Under that standard, religious speech and activities in the public sphere are not unconstitutional if they do not compel citizens to engage in a religious observance. While the court majority disagreed about how the coercion test should be formulated, it is nonetheless clear that coercion will be the barometer which the High Court will use for the foreseeable future.
This is an enormous victory for the freedom of religion in the public arena. Citizens and public officials who
choose to acknowledge God in public observances outside of the school setting will be able to do so with less fear of legal intimidation. Their remarks will be less likely to be muzzled simply because somebody objected to the religious content of their speech. As Justice Kennedy stated: "Offense does not equate to coercion."
Missouri attorney Jonathan Whitehead hailed the decision. "The government has no business editing prayers, or neutralizing religious speech. Religious people should be able to give invocation prayers that reflect their actual beliefs. Since our founding, Americans have known how to respect each other, even when they pray from a different denomination or faith."
Whitehead and his father, Michael Whitehead, filed a friend-of-the-court brief in the case on behalf of the Ethics and Religious Liberty Commission of the Southern Baptist Convention.
We take great pleasure in noting that the U.S. Supreme Court decision in Greece
validates Missouri's Constitutional Amendment on the free exercise of religion, which was adopted by state voters in August of 2012 by a vote of 83 to 17 percent as Amendment 2.
That amendment, written in large part by the Missouri Family Policy Council, protected the right of Missouri citizens to pray and acknowledge God in public settings. It also preserved the right of the General Assembly and local governments to invite ministers and other individuals to offer invocations before public meetings.
Opponents of Amendment 2 had argued in the media and in court that the language of the constitutional amendment violated the First Amendment. It is now
indisputably clear that they were wrong. Hopefully this decision will provide clarity to both public decisionmakers and journalists, who have often had a difficult time understanding the true nature of the religious freedom guarantees of the Bill of Rights. In an era where religious freedom is under ferocious attack, it is encouraging that public prayer has been legally insulated from these attacks.