Fact Sensitive Christian Legislative Prayer Opportunity (TOWN OF GREECE v. GALLOWAY)

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I’m sharing a link to the recent Supreme Court ruling permitting the practice of sectarian prayer to solemnize town hall meetings in Greece, New York. You can read the whole thing here. The majority opinion is to my mind full of contradictions relating to the tension between the particular in relation to the universal, or rather the tension between sectarian expression in relation to non-sectarian purpose and function. Together with the minority argument, the entire ruling touches in a systematic way on the nature, character, and functions of prayer, ceremonial ritual, religion, politics, society, law, history, tradition, expression, idiom, affect, citizenship, and last but not least, belief and doctrine. What goes unsaid is the peculiar character of Christianity or Protestant Christianity as an evangelizing form of religion or religious culture, especially in contemporary times. Undergirding the discussion of religion and the public sphere is the specific notion of a “prayer opportunity,” the precise formulation of which I assume is a Protestant one of relatively recent invention (as was the very idea to institute legislative prayer in the town of Greece, NY).

Understood as a “fact-sensitive case,” the basic facts are these, as read from Justice Kennedy’s majority ruling: Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation…The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future.

As many of the justices note, the case is more “fact-sensitive” than one based on principle. None of the justices opposed sectarian prayer in town halls and other institutional bodies such as Congress. At issue is whether the members of the town council in Greece actually committed themselves to a best practice that would require a good faith effort in opening the opportunity to non-Christians. The decision was 5-4 cutting down ideological lines. I’m have organized the material and have highlighted in italic those parts of the majority opinion and the dissent that I think frame basic points relating to the question of citizenship and religion, and also regarding the very nature of prayer.


Expressive Ceremonial Prayer

The first point that struck me is the sociological-functionalist understanding of prayer, as opposed to a liturgical, confessional, or spiritual one. Prayer is expressive, but what does it express? The purpose of prayer in this particular kind of public, legislative setting is not to worship God or to promote a faith, but to solemnize a proceeding by lending it a special mood marked by gravity. As conceived by the Court, the direct object of this kind of prayer is society, not deity. Prayer is understood here to be an almost purely ceremonial form, whose doctrinal content is seen to be irrelevant. For the purpose of this particular type of instance, [1] sectarian prayer is presented in terms of historical “expressive idiom” whose purpose, in this type of setting, is [2] non-sectarian and universal, even secular. This is actually a very complex if not contradictory thought which “reasonable observers” are presumed by the Court to understand naturally or intuitively. The ruling presumes on the part of a citizen a basic and common facility with the idiomatic tradition of the country.

[Kennedy:]Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” Marsh, 463 U. S., at 794–795. It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.


[Kennedy:] The prayer opportunity in this case must be evaluated against the backdrop of historical practice. As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of “God save the United States and this honorable Court” at the opening of this Court’s sessions. See Lynch, 465 U. S., at 693 (O’Connor, J., concurring). It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews.

No Generic Prayer

The nub of a deeper contradiction in the Court ruling lies in the claim that [1] expressive sectarian prayer [2] can serve a non-sectarian public function or purpose, while also [3] claiming that prayer is not and cannot be generic. This part of the argument about prayer presumes that there is no universal baseline to prayer, but that the universal baseline to prayer is itself always sectarian. The part of the argument goes beyond the formal-functional conception of prayer to make what is in fact a theological point. In direct contradiction to the point that “reasonable observers” will understand the idiomatic peculiarity of sectarian prayer, the further claim is then made that there is no single doctrinal standard or language upon which “reasonable observers” can agree as the United States becomes more and more diverse. That being now the case, the default setting of public-legislative prayer opportunities is set back to a sectarian baseline.

There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian.  Honorifics like “Lord of Lords” or “King of Kings” might strike a Christian audience as ecumenical, yet these titles may have no place in the vocabulary of other faith traditions. The difficulty, indeed the futility, of sifting sectarian from nonsectarian speech is illustrated by a letter that a lawyer for the respondents sent the town in the early stages of this litigation. The letter opined that references to “Father, God, Lord God, and the Almighty” would be acceptable in public prayer, but that references to “Jesus Christ, the Holy Spirit, and the Holy Trinity” would not. App. 21a. Perhaps the writer believed the former grouping would be acceptable to monotheists. Yet even seemingly general references to God or the Father might alienate nonbelievers or polytheists.

[Alito: concurring opinion] Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer

To complete the contradiction, the doctrinal content of ceremonial prayer is imagined by the Court to be generic, relating as it does to belief in a broadly conceived “higher power.” It’s that generic and non-sectarian quality, the possibility of which the Court denies, that gives prayer in this case a “permissible ceremonial purpose. In other words, the Court denies the possibility of generic prayer in order to justify the introduction of sectarian prayer into a public ceremonial setting. But it can only justify that introduction on the basis of the very generic default which the Court seeks to deny.

Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be under­stood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose.

Rotating Prayer

The Court comes back to idiom. Both the majority and minority opinion agree that, ideally, sectarian prayer should rotate. Each faith community and even atheists get a turn at the dais, to speak the language of their own expressive idiom. While an ideal solution, such arrangements are harder to arrange in particular cases, which are always “fact sensitive.”

The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.


Fact-sensitive, the practical decision about whose idiom will rotate more often comes down to demography. In areas of the country with an overwhelming Christian majority, the sectarian idiom will be overwhelmingly Christian. Sectarian prayer in legislative and other public settings is thus allowed by the Court to enshrine or sanctify on a quantitative basis majoritarian privilege in society, or in segments of society, meaning that society is no longer seen as uniform or homogenous in quality.

[Alito concurring opinion] Apparently, all the houses of worship listed in the local Community Guide were Christian churches. Id., at 198– 200, 203. That is unsurprising given the small number of non-Christians in the area. Although statistics for the town of Greece alone do not seem to be available, statistics have been compiled for Monroe County, which includes both the town of Greece and the city of Rochester. According to these statistics, of the county residents who have a religious affiliation, about 3% are Jewish, and for other non-Christian faiths, the percentages are smaller.1

Exclusive Prayer

In her dissenting opinion Justice Kagan observed the power of exclusion that characterizes sectarian prayer and the social effect that violates the bond of a citizen with her country as represented by its government. Rather than unify the social fabric and body politic, brings religious difference to the forefront. Central to Justice Kagan’s argument is the distinction between sectarian legislative prayer before actual legislators or council members who are going about the business of their day versus sectarian legislative prayer in a town hall setting where the public at large comes to petition the council. What matters more in this case is not the work of the legislator, but rather the right of the citizen who “stands before her government” on an unequal footing.

[Kagan, dissenting opinion]  For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American. 


And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community’s majority religion, and for altering the very nature of her relationship with her government. That is not the country we are, because that is not what our Constitution permits. Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture.


Still more, the prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths. See Braunfeld v. Brown, 366 U. S. 599, 606 (1961) (plurality opinion) (recognizing even half a century ago that “we are a cosmopolitan nation made up of people of almost every conceivable religious preference”). The monthly chaplains appear almost always to assume that everyone in the room is Christian (and of a kind who has no objection to government­sponsored worship4). The Town itself has never urged its chaplains to reach out to members of other faiths, or even to recall that they might be present. And accordingly, few chaplains have made any effort to be inclusive; none has thought even to assure attending members of the public that they need not participate in the prayer session.


A Different Kind of Citizen

The nub of the dissenting opinion is that sectarian prayer in these kinds of public setting create different and unequal kinds of citizen. The argument between the majority and minority opinion is thus brought back to the social function of religion and prayer. The different kind of citizen is set by sectarian prayer at a “remove” from her fellow citizens and elected representatives.

[Kagan dissenting opinion] Let’s say that a Muslim citizen of Greece goes before the Board to share her views on policy or request some permit…But just before she gets to say her piece, a minister deputized by the Town asks her to pray “in the name of God’s only son Jesus Christ.” She must think—it is hardly paranoia, but only the  truth—that Christian worship has become entwined with local governance. And now she faces a choice—to pray  alongside the majority as one of that group or somehow to  register her deeply felt difference. She is a strong person, but that is no easy call—especially given that the room is small and her every action (or inaction) will be noticed.  She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ’s divinity, any more than many of her  neighbors would want to deny that tenet. So assume she  declines to participate with the others in the first act of the meeting—or even, as the majority proposes, that she stands up and leaves the room altogether, see ante, at 21. At the least, she becomes a different kind of citizen, one who will not join in the religious practice that the Town  Board has chosen as reflecting its own and the community’s most cherished beliefs. And she thus stands at a remove, based solely on religion, from her fellow citizens and her elected representatives.


Prayer Content (Belief)

The phenomenon of public, legislative prayer cannot simply about ceremonial form and idiom. Rather, ceremonial form and idiom matter doctrinally. As much as scholars of religion today want to set aside the phenomenon of “belief” in order to focus on “expression,” at the end of the argument as Justice Kagan understands it, the content of sectarian prayer cannot be as conveniently set aside as the majority seems to want. Beliefs are always embedded into or out of “expression.”

[Kagan dissenting view] The content of Greece’s prayers is a big deal, to Christians and non-Christians alike. A person’s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity—who that person is and how she faces the world. And the responses of different individuals, in Greece and across this country, of course vary. Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans. Ante, at 19. They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present potential to both exclude and divide.

About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish thought and philosophical aesthetics. http://religion.syr.edu
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