Gutting the Establishment Clause

Congress shall make no laws respecting the establishment of religion...

The Establishment Clause forbids the US government from establishing a state religion. Jefferson made it clear in his correspondence what that clause meant, famously coining of the term “wall of separation” between state and church. Yesterday, in a regrettable decision, the US Supreme Court chose to gut the Establishment Clause of the First Amendment.

The Court ruled[1] that prayers organized by, and delivered at the meetings of, the Town Council of Greece, NY are Constitutionally permissible. Of course, the majority opinion of the Court, written by Justice Anthony Kennedy relied heavily on the earlier Marsh v. Chambers ruling the permitted legislative prayers, seeing such utterances as largely ceremonial.

Although I disagree completely with the assertion in Marsh v. Chambers that legislative prayers are permissible because of their tradition, Justic Kagan in her dissent here makes it clear that there is a clear distinction between the functioning of a legislative body and that of a town council. She writes:

“Greece’s Board indeed has legislative functions, as Congress and state assemblies do—and that means some opening pray­ers are allowed there. But much as in my hypotheticals, the Board’s meetings are also occasions for ordinary citi­ zens to engage with and petition their government, often on highly individualized matters.”

In a well-written, narrative fashion, Justice Kagan paints a clear distinction between prayers offered in the contexts of Nebraska’s unicameral legislature (the site of Marsh v. Chambers) and this case. She points out that in Marsh v Chambers, the payers are directed at the legislators, not at the audience. In Greece, NY v. Galloway, the chaplain stands with his back to the Town Board and directs his prayers at the audience, the citizens of the town.

We inhabit a country founded on the principles of equal rights and protection under the law. Prayers, organized by the government, at government meetings, particularly those that are directed to the citizenry in attendance have no place here. The free exercise of religious practice does not extend to the use of government as a tool to further particular sectarian reach. It is clear that the Town of Greece, NY like many towns across the country that sponsor government prayers convey the message, whether explicit or not, that there are two classes of citizens, those who harbor the same (“correct”) relgious beliefs, and those who don’t. Those who don’t can presumably just go live somewhere else.

  1. Town of Greece, New York v. Galloway