A GREECE FIRE
A controversy is ablaze in Greece, New York, a township located on the southern shore of Lake Ontario and constituting the largest suburb of Rochester. The basic facts pertinent to the matter are as follows:
- The township is governed by an elected board of five members, including the town supervisor, who is its chief executive officer.
- All members of the board were at the time of the controversy Christian.
- In 1999, the board instituted the practice of including an invocation in its meetings. Local members of the clergy were invited to pray. Until 2007, only Christian clergy did so.
- In the same year, two of the town’s residents, Susan Galloway, who is Jewish, and Linda Stephens, who is an atheist, complained to the board that the practice was a violation of the Establishment Clause of the Constitution. The practice continued in spite of their complaint; so they instituted suit.
- The district court dismissed the suit, stating that neither the procedure for inviting the clergy nor their prayers violated the Constitution.
- The United States Court of Appeals for the Second Circuit reversed the district court’s ruling and held that the town board had, in principal and effect, endorsed a particular religious point-of-view.
- The case is now pending before the United States Supreme Court, which is comprised of six Roman Catholic and three Jewish justices. Oral argument took place this week.
If the township is successful in its defense, prayer will continue to be heard in government. Indeed, in Marsh v. Chambers, decided in 1983, the Court held that the State of Nebraska’s legislature was free to hire a chaplain, who happened to be an ordained Presbyterian minister, to open each legislative session with a prayer. The Court made clear that, from colonial times to the founding of the Republic, and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. The argument is based upon American history, tradition, and culture.
The Court thereafter determined, in Lee v. Weisman, that the nonsectarian prayers of a rabbi at a high school graduation ceremony were an unconstitutional establishment of religion, because the students comprised a captive audience. Such prayers, the Court contended, were inherently divisive and coercive. This ruling gave rise to what conservative justice Antonin Scalia (right), sarcastically termed “the psycho coercion test” for determining the constitutionality of prayer.
As confident as one may be in the strength of Marsh, it bears noting that the Supreme Court is, as Harvard law professor Richard H. Fallon Jr. reminds us, not an “it,” but a “they.” The Court’s membership has changed since 1983. There is, for the first time in American history, not a single Protestant justice on the Court. John Paul Stevens was the last, and he retired in 2010. Marsh is 30 years old. Will the Court find it a pivotal precedent in the instant case? Who knows?
I have never believed that, after the Court adopted a rigid separationist view of Establishment Clause jurisprudence in 1947, its holdings in these cases demonstrated much consistency. The decisions strike me as legally unprincipled and as a virtual hodgepodge, best explained by the political predilections of each individual justice.
Yet as I count noses on the Court, I believe that the Town of Greece v. Galloway will end in a razor-close 5 to 4 decision, with Justice Sotomayor and the three Jewish members of the Court, Justices Kagan (above), Breyer (center left), and Bader-Ginsburg (right), voting to strike down the practice as unconstitutional.
Justice Anthony Kennedy (below), I predict, will be the decisive swing vote. He wrote for the majority in Weisman. The question is whether the coercion test, applied in that case, will govern this one. If so, the door may surely be left open to attacking all future legislative prayer, because there is invariably someone who is “offended” and who “feels coerced.” Such a judicial turn would be of earth-shaking significance throughout American government with repercussions in civil society.
My hunch is that, if Greece loses, it will be because the Court’s majority thinks it has succeeded in distinguishing Greece's situation from that of Marsh. You may be wondering how this could be, since both cases obviously involve prayer in legislative bodies. If you don’t already realize the fact, then let me break the news to you: the United States Supreme Court is often disingenuous in its decision-making and unapologetically specious in its reasoning. Its long, checkered history demonstrates this point in spades.
I, along with others, remain troubled by the cavalier way in which the Supreme Court runs roughshod over traditional American values. It has outlawed public school prayer in all forms and fashions, as well as a moment of silence. It has in recent years overturned anti-sodomy statutes and found unconstitutional a provision of a federal statute defining marriage as between one man and one woman.
The person in the forefront of many of these developments is none other than Justice Kennedy. When Dr. James Dobson once described him as “the most dangerous man in America,” I was shocked and discounted the characterization as typical of the hyperbole in which the Christian right sometimes engages. I have since re-considered Dr. Dobson’s description and find myself in essential agreement with it.
The role of courts in this country should not be to refashion American culture and its values except when there is the most palpable and egregious violation of the Constitution. To strike down practices that constitute age-old American traditions, which if questionable still leave room for reasonable debate on both sides of the issue, should not be the prerogative of nine lawyers in black robes. The justices should in such cases defer to the “wisdom” of political majorities. This is the great negative lesson of Lochner v. New York, in which the majority of the justices on the Court in 1905, who were advocates of Herbert Spencer’s economic philosophy, took it upon themselves to strike down a state statute that limited the employment hours of bakers to 10 hours a day and to no more than 60 hours a week. The Court improvidently substituted its reasoning for that of the New York legislature, an illegitimate undertaking at best. Most constitutional law commentators regard the case as one of the Court’s most notorious blunders.
If Greece does not want to invoke a deity at its town board meetings, then it and it alone should decide that. The Supreme Court of the United States should not raise its heavy hand in the matter and, if and when it does, should re-affirm the town’s right to decide the question for itself, over any heckler's veto. Otherwise, there will be those who, like me, rightfully accuse the Court of subverting the popular sovereignty of states and municipalities in favor of a rank, aggressive secularism and of being little more than a power-hungry krytocracy.
The American people are cursed with too much government, or haven't you noticed? The Supreme Court, in order to ensure that its role in public life is above reproach, must exercise its power wisely, but sparingly. By deferring whenever possible to the judgment of state legislatures and townships, like Greece, the Court can play a vital role in safeguarding liberty and, in doing so, can be truly neutral. By assuming its proper role as "the weakest branch' of government, as set forth in the Federalist Papers, the judiciary can realize unparalled respect and, paradoxically, enhanced power.
November 9, 2013