There were a few (very few) hopeful moments during the U.S. Supreme Court’s oral arguments Nov. 6 on the constitutionality of prayers opening governmental meetings. The case — Town of Greece v. Galloway — is brought by Americans United on behalf of plaintiffs Linda Stephens, an atheist and FFRF member, and Susan Galloway, who is Jewish.
The New York town is represented by the Alliance Defending Freedom, a Christian Right law firm which describes itself as a “servant ministry building an alliance to keep the door open for the spread of the Gospel.”
The case revisits Marsh v. Chambers, a 1983 Supreme Court decision carving out a narrow exception for governmental prayer where it has been “traditional” and nonsectarian. That case was brought by Nebraska state Sen. Ernest Chambers, who had won the case at the two lower levels but lost at the Supreme Court.
Nevertheless, even after the ruling, the feisty Chambers managed to get his state to at least stop paying for and hiring a chaplain. Even today, while back in office after being briefly term limited, Chambers still must enter the Senate chambers late to avoid being prayed at. When the Marsh ruling came down, FFRF’s federal lawsuit against the Wisconsin Legislature for praying and paying for prayer was thrown out. Since then, prayer by our government at all levels has proved to be one of the most common but intractable of the complaints over state/church entanglements that FFRF receives.
I’ll save the few great moments by some of the Supreme Court justices for the end of this blog. What I want to focus on is the fact that these arguments were pervaded by the giddy theme that it’s OK to “exclude the atheists.”
Douglas Laycock, the attorney for Galloway and Stephens, went along with this, apparently in part because of some party line that had been agreed to that he mustn’t argue that government prayer be dropped altogether. Now, if you’re an atheist, as one of the plaintiffs that Laycock was representing is, and as one in five adult U.S. citizens is today, “nonsectarian” prayer doesn’t stop the problem.
Government prayer that avoids petitioning “Jesus Christ” may be an improvement for Jews and other non-Christian believers, but it continues to exclude those of us who don’t believe in a god, much less a god who answers prayer. Even so-called “nonsectarian prayer” is government speech that turns the orthodox into insiders, and nonbelievers into political outsiders.
Laycock therefore studiously avoided any acknowledgment of that elephant in the nation’s living room: the right of nonbelievers to be free from government-fostered religious ritual. The conservative justices, sensing his discomfort, kept trying to taunt him into slipping up:
Justice Alito: “You’re really saying you can never have prayer at a town meeting,”
Laycock: “That’s not what we’re saying.”
Alito: “Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus.”
Chief Justice Roberts: “And atheists.”
Justice Scalia: “Throw in atheists too.” [laughter]
Laycock: Marsh [implies] that atheists cannot get full relief in this context. … That’s in the American civil religion, the Judeo-Christian tradition.”
Alito kept pressing and got Laycock to admit that “Polytheists, I think, are also excluded from the McCreary dissent.”
Scalia then piped up, “What about devil worshippers?”
Laycock: “Well, if devil worshippers believe the devil is the Almighty, they might be OK. But they’re probably out.” [laughter]
Alito then asked if “Heavenly Father” was “acceptable to all religions.”
Laycock: “ ‘Heavenly Father’ is very broadly acceptable. And you know the test cannot be unanimity, because that’s impossible, right? That’s why the atheists are — that’s why the atheists are excluded.”
Laycock even went on to admit, “ We cannot treat . . . literally everybody equally without eliminating prayer altogether.” Standing inside the building that has the words “Equal Justice Under Law” engraved on it, Laycock essentially stated in Orwellian terms that some citizens are “more equal” than others: “We can treat the great majority of the people equally [italics added] with the tradition of prayer to the almighty, the governor of the universe, the creator of the world —”
Justice Scalia: “You want to pick the groups we’re going to exclude?”
Laycock: “I think you picked them, Your Honor.”
Justice Scalia: “The Baha’i, who else? These — these groups are too small to —”
Chief Justice Roberts: “We’ve already excluded the atheists, right?”
Justice Scalia: “Yeah, the atheists are out already.”
Laycock: “We’ve excluded the atheists. I don’t think the Baha’i are excluded, but I’m not certain.”
Laycock then went on to repeat “the atheists are inevitably excluded. We can’t help—”
Justice Scalia: “OK. Good. Got that. Number 1, atheists. Who else?”
Laycock: “True . . . polytheists who don’t understand their gods are manifestations of the one god are probably excluded. I’m not sure many others are.”
So that makes it OK? Only the atheists, polytheists and “devil worshippers” are not part of “We, the People”? It’s so simple. If we honor the separation between government and religion, government can literally treat everybody equally. Eliminate government prayer altogether, thus no longer permitting the government to favor the orthodox and turn the rest of us into political outsiders.
Laycock made some strong points elsewhere during the argument, but he ought to have stood up here not only for nonbelievers, but for principle.
• • •
On to the highlights:
• Justice Elena Kagan came on strong at the start, reciting a deeply sectarian Christian prayer (“We acknowledge the saving sacrifice of Jesus Christ on the cross . . .”), then asking whether it would be appropriate to start the Supreme Court with such a prayer, for the justices to stand, say “Amen,” make the sign of the cross.
Kagan got the attorney from Alliance Defending Freedom to concede that he didn’t think that would be “permissible.” Justice Sonia Sotomayor, in questioning the U.S. attorney, noted: “You can’t argue that the quote that Justice Kagan read is not sectarian. It invokes Jesus Christ as the savior of the world. There are many religions which don’t believe that. Let’s get past that.”
• Justice Anthony Kennedy, often a swing vote, twice pondered aloud the argument from history that’s invoked to justify government prayer: “Well, the essence of the argument is we’ve always done it this way, which has . . . some force to it. But it seems to me that your argument begins and ends there.”
Even Roberts questioned “how far you can carry your historical argument,” musing over whether the motto “In God We Trust” could be constitutionally adopted today: “History doesn’t make it clear that a particular practice is OK going on in the future.” (Let’s be sure to quote this back to him at the appropriate moment.)
• Justice Stephen Breyer has elicited some fun speculation that he may have privately “outed” himself as, if not a nonbeliever, at least a “non-pray-er.” In answer to Scalia’s question of “What is the equivalent of prayer for somebody who is not religious?” Breyer replied: “Perhaps he’s asking me that question and I can answer later.”
• Justice Kagan made me proud when she delivered a homily that would have made a moving moment in a Frank Capra film (had Capra been more freethinking), and in fact would make an excellent way to start any government meeting:
“Here’s what our country promises, our Constitution promises. It’s that, however we worship, we’re all equal and full citizens. And I think we can all agree on that. And that means that when we approach the government, when we petition the government, we do not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American.
“And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify, whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom most of the people in the room do. And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.”