Is the Supreme Court Establishing a Christian Nation?

In the endless tug and pull of whether to allow crosses, ten commandment tablets, menorahs and nativity scenes in public spaces, the courts have generally tried to keep church separate from state. But we now have a Supreme Court that is showing a bias toward religion, and that religion is Christianity.

The Court’s surprising ruling May 5th said that beginning a town council meeting with prayer in a New York state town named Greece — and by extension everywhere — was more than acceptable even though those prayers were heavily
infused with Christian liturgical references. The Wall Street Journal’s editorial called it “a good turn for religious freedom” and even said the “disconcerting surprise is that the decision was only 5-4”. The split was the usual right-left clustering with Justice Anthony Kennedy effectively casting the deciding vote and writing the majority opinion.

The First Amendment of the Constitution reads (in part) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. To steer clear of government ever proclaiming a national religion, keeping church apart from state has been the least complicated and successful remedy.

Our country’s freedom of religion means people are free to follow their beliefs and congregate separately in their churches, synagogues and mosques but the Court has decreed the opposite: that religion may be brought out of houses of worship and into the public square where people can be subjected to someone else’s religious beliefs. In the town of Greece it was "month in and month out for over a decade, prayers steeped in only one faith”, wrote Justice Elena Kagan. This encroachment on how the First Amendment has been interpreted brings to mind James Madison’s warning: “It is proper to take alarm at the first experiment on our liberties”.

Just weeks before, the Court heard the case of two corporations that had sued not to be required by the Affordable Care Act to enroll in health plans that pay for employee contraceptives, a story we covered in “Do Corporations Have Religious Rights?”. The companies complained that this would be in contravention of their religious beliefs. Generally referred to as the Hobby Lobby case — the name of the larger company, an Oklahoma-based chain of 600-plus stores selling craft knickknacks — it was brought by owners who are devoutly religious. Owner David Green says, “I could live the way I do with ten stores. So why do we want 500 stores? So we can tell more people about Christ”.

The owners are of course free not to use contraceptives but they wish to impose their own religious beliefs on the company’s 30,000 employees. They petitioned the court that they not be forced to pay for the contraceptives that are covered by Obamacare-approved plans. Of the twenty government approved methods of contraception, the Greens are particularly averse to four — one referred to as the "morning after pill" — that act, they say, tantamount to an abortion, even though in the usual case there is no beginning of pregnancy on that morning after. Even if there were, nothing exists at that moment but a zygote — a single cell that has not yet begun to divide and multiply a hundredth of a millimeter in size and smaller than the period that ends this sentence. Hobby Lobby and the second company, Conestoga Wood Specialties of Pennsylvania, consider even this as "sacred" human life.

In the Greece, New York, case, what gives rise to the accusation that the right wing of the Court is deliberately engineering a breach in the wall between church and state is the weakness of the majority’s arguments.

In his separate opinion that concurred with the majority, Justice Samuel Alito was unperturbed by meetings at which Christian clergy led the prayers for almost a decade because only 3% of the town is Jewish and other non-Christian groups are fewer still. One would think that he meant for the Court’s ruling to apply to Greece alone. But a Supreme Court decree is universal and applies to all the town meetings across America, where the audience composition will surely be more mixed.

In his majority opinion, Justice Anthony Kennedy wrote that we should not object to references to a specific religion and its beliefs — which is to say Christianity, 76% of the nation’s population being Christian — because it would be impractical to vet prayers in advance. Such a rule “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”. But that chooses to run counter to the simpler course which is to remove prayer from public governmental meetings altogether. Why does the exercise of government need to be wrapped in a religious benediction and a request through prayer that its activity be overseen and guided by God?

Ah, but invoking God is a tradition that goes back to the Continental Congress, Kennedy reminds us. Since the 18th Century, a chaplain has been in the employ of the U.S. Congress to bless the proceedings. The conservative justices in Greece v. Galloway cited the precedent of 1983’s Marsh v. Chambers in which the Nebraska legislature’s practice of opening its sessions with an invocation to prayer was accepted by the Supreme Court as “deeply embedded in the history and tradition of this country”.

Evidently Kennedy believes that tradition should trump the Constitution. “It is … preposterous to say that something is constitutional simply because it’s been done in the past”, says Katherine Stewart, author of a book on the Christian Right. In her dissent, Justice Kagan objected to the assumption that the nation’s founders endorsed religion’s intrusion into government, pointing out that Washington, Jefferson and Madison “took pains to keep sectarian language away from public life”.

Those dissenting also argued that there is a difference between the practices of legislative bodies, where all are members, and town meetings where government outsiders — the citizens of the town — attend and should not be asked to join in prayer in order to participate in government.

The weakness of their arguments needed extra-Constitutional rationalizations, such as Kennedy writing, "Prayer that is solemn and respectful in tone...invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing”. Allowing a dominant religion to color the proceedings is what is fractious, as opposed to coming down on the side of inclusiveness. Proof of how divisive is the Court’s decision: all five approving of Christian prayer that others must endure are Catholic; three of the four dissenters are Jewish.

Folks should “tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith” wrote Kennedy.

A Jew, whose roots are in the teachings of the Old Testament, should therefore not be offended when in a public place he or she is compelled to join in a prayer infused with references to Christianity with language such as “we acknowledge the saving sacrifice of Jesus Christ on the cross” and "the plan of redemption that is fulfilled in Jesus Christ" and “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit”. Justice Kagan quoted several extended quotes from actual prayers at Greece that included these phrases.

An atheist, perhaps knowing from the breakthrough scientific discoveries of the past century that we are but a speck among billions of like planets in a vast Universe and who therefore does not believe in a god that has somehow singled out Earth for special attention, thinks prayer itself is an absurdity but is made to suffer it.

This is Kennedy's prescription. Two persons brought the case in Greece, one a Jew, the other an atheist.

The argument of those who dissented was that attendees felt “coerced” into joining in prayer, that if they remained upright rather than bowed or failed to stand, they would be stigmatized in the eyes of others in the audience. The justices said that coercion in these public meetings was not strong enough for that to be a deciding factor. But how would the justices know? In their exalted role apart from every day social norms, when and where have they ever felt coerced?

Justice Anthony Kennedy showed how blind he is to the coercive effect of invocations to public sectarian prayer. "The town of Greece … does not coerce participation by non-adherents", Justice Kennedy wrote. “Adults often encounter speech they find disagreeable. Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

Except, not participating is conspicuous. When a Christian minister stands before those assembled and bids “All rise”, an objector who elects to remain seated endures the sidelong glances of others, the stigma of being an outlier, of making a “statement”? Instead there is pressure to go along. Townspeople go to these meetings to petition local government for some need or to seek redress of a grievance. By not going along they risk being voted against by the closed-minded and vengeful who might sit on the town board.

The Greece v. Galloway decision seems to tip the Court’s hand in how it will decide Hobby Lobby sometime in June. While they maintain it is not coercion to ask the religious minorities of Greece to tolerate prayer of a different faith, in Hobby Lobby the conservative wing of the Court is likely to reverse field and find it indeed coercive to force the plaintiff corporations to pay for contraception. When the case was heard in March, Chief Justice John Roberts mused that perhaps there could be exemptions from the healthcare law requirement granted only to closely-held businesses because, assuredly, public companies like Exxon wouldn't profess religious convictions. If Greece is a creeping encroachment on the First Amendment, exemptions would be the Court creating new law — special treatment for their class of favored corporations, religious objectors that would "come out of the woodwork" as Justice Kagan said.

Katherine Stewart’s monitoring of the Christian fundamentalists says that Greece was not operating in isolation. The Family Research Council, one of several organizations backing the town elders, exulted that Greece v. Galloway “wasn’t just an answer on prayer — it was an answer to prayer!” She calls it “the long game being played by the religious right”. They are fighting what they think is creeping secularism in America. In the past 10 years the percentage of those who say they have no religious affiliation has more than doubled, from 8% to 20%, and among adults under 30, a third are unaffiliated. Owing to the stigma attached to admitting non-belief, the percentage is thought to be higher still, witness the shrinking attendance at religious services. Rather than a conspiracy by the left, it is more likely a natural growth of disbelief in superstition.

To combat it, Stewart warns that the groups are trying to infuse a “soft” religiosity in America, where the “formal guarantees of religious freedom and the official separation of church and state remain in place” but the particular religion they have in mind permeates society and is acknowledged as the true foundation of public life and public policy. The Court seems to like this idea.