Balkinization: Town of Greece and the Demise of Religious Neutrality

Like many people I feel warm and comfortable when I go to the Church in which I was raised.  The ritual, the readings bring me back to my childhood faith and the basic ethical messages I absorbed as a Roman Catholic.  I particularly like the Gospels.  But I lose all of that comfort when at a public non-religious event I hear talk of our Saviour, etc.  Even at events like graduation the Jesuit priests at Fordham speak of God only in terms of such generality that a Muslim, Jew, or Buddhist would feel unchallenged.
Good thing that I don't have business upstate in the Town of Greece where I could hear uncomfortably what I could warmly embrace at Church, or a funeral, or administration of Last Rites:  

“We pray this [day] for the guid­ance of the Holy Spirit as [we vote] . . . . Let’s just
say the Our Father together. ‘Our Father, who art in Heaven, hallowed be thy name; thy Kingdom come, thy will be done, on earth as it is in Heaven. . . .’”

I would feel uncomfortable because I go to town meetings to learn about and participate in the business of the town - not to pray with my co-religionists.  If I heard such prayer at the town meeting I would think that I had made a wrong turn.  Such prayer is an endorsement of religion, an establishment.  Unfortunately that is not enough in Justice Anthony Kennedy's mind - there must be coercion to cross the constitutional line, in his view. - gwc

Balkinization: Town of Greece and the Demise of Religious Neutrality:

by Richard Schragger, Micah Schwartzman and Nelson Tebbe

The Court has decided the first of two anticipated blockbuster religion clause cases this term. In Town of Greece v. Galloway, it held that a town legislature may open its meetings by inviting a minister to offer an explicitly sectarian and denominationally specific prayer without running afoul of the Establishment Clause. Constitutional prohibitions apply only if there is a long-term practice of giving prayers that proselytize or denigrate other faiths, or perhaps if there is evidence of intentional discrimination in selecting prayer-givers. Yet the fact that a government-sponsored prayer is always given by a Christian minister and promotes Christian beliefs is not evidence of discrimination.***

As far as we can tell, Justice Kennedy has no principle to distinguish what the ministers were doing before (preaching the word), and what they can’t do now (preach conversion or denigration). Nor can he tell us why legislative prayer can be distinguished from all sorts of other prayers at all sorts of other government events. In a powerful dissenting opinion (rightly praised by Sandy Levinson below), Justice Kagan raises the possibility of prayer in the courtroom before a trial, prior to a naturalization ceremony, at a polling place on election day, or at the DMV. And she is right to be concerned. If governments want to invite ministers in to “solemnize” all these ceremonies, they can, and Justice Kennedy has no theory as to why this would run afoul of the Establishment Clause, as long as they don’t proselytize or preach damnation.

Actually, strike that last sentence. Justice Kennedy would allow some ministers to preach damnation. He observes that courts should not examine particular prayers in isolation, but should instead examine an entire practice before wading in to enforce his proposed constitutional limits. Occasional damnation is fine, as long as it does not become a habit. Here we see some of the last constraints on government-sponsored sectarian prayer coming undone. And we see the ultimate demise of government neutrality among faiths. 'via Blog this'