When I was covering the DeKalb County Courthouse outside Atlanta two decades ago, one of the more religious judges (a Presbyterian) made a point of not having witnesses put their hands on a Bible when swearing to tell the truth. He didn’t want those who might object — Muslims, Hindus, atheists, whoever — to feel that their testimony might be given less weight if they had to take it upon themselves to decline to do so.
Yesterday, the Supreme Court was less solicitous of religious minorities in ruling that the predominantly Christian prayers given by the “chaplain of the month” at Greece, New York’s town council meetings do not violate the First Amendment’s Establishment Clause. As Justice Kennedy wrote for the Court’s 5-4 majority:
Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed.
It is telling that all three of the non-Christian justices (i.e. the Jewish ones) disagreed. In her dissent, Justice Kagan outlined a number of scenarios in which non-Christian citizens coming before the commission with petitions might well be intimidated by chaplains who, as the evidence in the case showed, face the public in giving their prayers, often in the name of Jesus Christ, while the commissioners bow their heads or cross themselves. A visitor from another planet — or, indeed, a recent immigrant from somewhere on this one — could be forgiven for thinking that the Town of Greece, New York, has an established religion.
If you think it is “niggling” — as Justice Alito described Justice Kagan’s concerns — to imagine that mature adults might be intimidated by government-sanctioned majoritarian religion, take a listen to Alabama Supreme Court Chief Justice Roy Moore speaking at Mississippi For Life’s Pastor For Life luncheon the other day. Moore, famous for his defiance of a federal judge’s order to remove a Ten Commandments monument from the Alabama Judicial Building, preaches to an assenting audience that the First Amendment was intended by the framers of the Constitution only to protect faith in “the Creator God” of the “Holy Scriptures.”
“Let’s get real, let’s go back and learn our history,” says Moore. “Let’s stop playing games.” OK, let’s.
Let’s take Benjamin Franklin, describing in his autobiography how the burghers of Philadelphia built a religious meeting house in the city after the great evangelist George Whitefield came through in 1739.
Both house and ground were vested and in trustees, expressly for the use of any preacher of any religious persuasion who might desire to say something to the people at Philadelphia; the design in building not being to accommodate any particular sect, but the inhabitants in general; so that even if the Mufti of Constantinople were to send a missionary to preach Mohammedanism to us, he would find a pulpit at his service.
Or let’s take Thomas Jefferson, who, as Justice Kagan referenced in her dissent, “explained that he omitted any reference to Jesus Christ in Virginia’s Bill for Establishing Religious Freedom (a precursor to the Establishment Clause) in order ‘to comprehend, within the mantle of [the law’s] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.'”
Let’s also note that the dissenters do not argue that any prayer at a town council meeting is impermissible. What they want to see is evidence of inclusion — at least some explicit indication from the governmental body that government-sanctioned prayer is not intended coercively or invidiously.
Kennedy himself acknowledged that invocations which “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion…would present a different case than the one presently before the Court.” The Court may find itself facing one of those soon enough.