A Missed Chance on Religious Freedom

Court Could Have Struck Balance on Public Prayer
To understand why religious freedom matters, put yourself in the position of someone who is part of a minority faith tradition in a town or nation that overwhelmingly adheres to a different creed. Then judge public practices by how they would affect the hypothetical you.
This act of empathy helps explain why religious liberty in the United States is such a gift. It is based, as Supreme Court Justice Elena Kagan wrote in her dissent to Monday's public prayer decision, on "the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian."
Religious liberty will not disappear because of the court's 5-4 ruling that the government of Greece, N.Y., could begin its town board meetings with prayers -- even though, as Kagan put it, "month in and month out for over a decade," they were "steeped in only one faith," in this case Christianity.
But the court majority not only failed the empathy test but also lost the opportunity Kagan offered to find a balance that would both honor religion's role in American public life and safeguard the rights of those whose faith commitments diverge from the majority's. 
The facts of the case are straightforward. As Justice Stephen Breyer noted in his own dissent, from 1999 to 2010, at more than 120 of Greece's town board monthly meetings, only four opening prayers were delivered by non-Christians. The four exceptions, Breyer pointed out, all "occurred in 2008, shortly after the plaintiffs [in the case] began complaining about the town's Christian prayer practice."
The court ruled that the government of Greece had not violated anyone's rights. "Ceremonial prayer," Justice Anthony Kennedy wrote for the majority, "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 acknowledgement of their belief in a higher power, always with due respect for those who adhere to other beliefs."
The town was justified, Kennedy argued, in drawing on clergy from houses of worship within its boundaries, which happened to be Christian. Greece's non-Christians worship at congregations outside its borders. 
For Kagan, this was an inadequate rationale, and she asked the essential questions: Would Christians living in a predominantly Jewish town feel their rights were protected if all public functions were presided over by a rabbi leading Jewish prayers? "Or assume officials in a mostly Muslim town," she suggested, "requested a muezzin to commence such functions, over and over again, with a recitation" of a traditional Muslim blessing?
Nonbelievers (and others uneasy with any link between religion and government) might fairly contend that putting an end to all such public religious invocations is the simplest solution to these difficulties. But Kagan was seeking a middle way. She thus rejected "a bright separationist line." A town hall, she said, "need not become a religion-free zone." Instead, "pluralism and inclusion ... can satisfy the constitutional requirement of neutrality."
And in insisting on the importance of bringing in minority religious voices, you might say that Kagan took faith more seriously than did Kennedy. Religious expressions can never be merely ceremonial, she wrote, because they are "statements of profound belief and deep meaning." Yes, they are.
In the years since the court's 1962 decision banning government-directed prayer in public schools, we have engaged in a fierce culture war over the role of religion in our public institutions. The school prayer decision has properly stood because it sought to protect against a form of government coercion. But friends of religion have charged that driving all vestiges of faith from every other corner of the public square was itself exclusionary behavior.
Kagan's pluralism principle would avoid this by allowing citizens of all faiths to be heard, and ways could be found to apply it to nonbelievers. It lays the groundwork for a compromise that will be imperative as immigration and declining affiliation render our country more religiously diverse. Religion would continue to have a place in our public institutions, but they would have the obligation to respect differences over "profound belief and deep meaning."
In contrast to a legal regime insufficiently alive to the rights of minorities and dissenters, Kagan's approach would provide religion with a public role at once more stable and more sustainable. Its day will come.
(c) 2014, Washington Post Writers Group

About the Author

E. J. Dionne Jr. is a syndicated columnist, professor of government at Georgetown University, and a senior fellow at the Brookings Institution. His most recent book is Our Divided Political Heart: The Battle for the American Idea in an Age of Discontent (Bloomsbury Press).



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The problem with having the 10 Commandments on the grounds of the courthouse is that it suggests to jurors and judges and prosecutors that they should operate and adjudicate according to God's law, as opposed to operating and adjudicating according to the laws of the city, state, and nation.  With regard to prayer before the meetings of city councils and other legislative bodies, I don't think that the potential threat to justice is as great, but I agree that Kagan's call for pluralism offers a better means of protecting religious liberty. - Larry Weisenthal/Huntington Beach CA

If I was a resident of this town, I would hope to see minority voices leading the prayers, but I wouldn't want to see this happen because of a requirement from the courts. If the courts require minority prayers then they will be viewed as a meaningless chore at best or an unwelcome foriegn intrusion at worst. Minority prayers ought to be brought in by the will of the townspople and the board members, otherwise they're better off left out.

So Dionne's support of Kagan's pluralism would require that cities, towns and villages recruit or hire representatives of every religious or non-religious belief if none were available locally to offer a prayer or anti-prayer at every meeting or on a court designated rotating schedule.


I think the comments of Elena Kagan, Mark Shields, and Larry Weisenthal are thoughtful and to the point.  I hope the following two comments, however, are not representative of residents of New York State where I have always lived.  At this point I've lived in southern New York for many years and of course we all know that this area is not the REAL New York!

@Jansie I don't understand. Are you saying that southern New York isn't the real new York? Or that Greece, NY isn't? What does that have to do with the issue of public prayer?


Another issue I see with Kagan's position is that atheists could take advantage of it by demanding an atheist lecture in place of prayer. Or a prayer to Satan. Or a prayer to the Flying Spaghetti Monster.

Or what if neo-pagans wanted to bring in a druid or witch to lead the prayers? Now, I have no beef with neo-pagans, and perhaps in some places where neo-pagans are common and prominent in the community this would be welcomed. But to many people it would seem silly, and might even seem to make a mockery out of prayer. I don't agree with that view, but they are entitled to it.

Unless we want the government deciding which religions are "legitimate," we can't imagine a legal principle that would determine which forms of prayer are acceptable (and required?) and which are not.

The only sane solution is to leave it up to the local community which prayers they want and which ones they don't. Only the locals know which forms of prayer are meaningful to them, and requiring them to include prayers that aren't meaningful to them is just senseless. And it stands a chance to ruin public prayers as a community tradition by, as I said before, turning them into a meaningless chore or a forign intrusion.

So I say this should be a local issue. It isn't the federal government's job to force pluralism on places that don't want it.

Not sure what "chance was missed" on religious freedom.  The plaintiffs wanted to create a naked public square in that upstate New York town; the majority of the Court rightly turned them down.  It was Kagan who would create a religion-free zone, Dionne's claims notwithstanding.  


I can offer my own experience in a different area: teaching religion/theology.  With the exception of Catholic universities, my services as a Catholic theologian are pretty much unwanted at any State or most non-Catholic private schools of higher education.  Back in the 1990s, the rage was eastern religion: reading the CHRONICLE OF HIGHER EDUCATION back then, you'd think that America was essentially a Taoist/Buddhist/Hindu country, given the search for theologians of those faith traditions.  Today, be an expert in 13th century Somali Islam and you'll land a job.  Be an expert in 13th century Christianity, and you'll elicit a yawn.


Which is to say that America, pace Justice Kagan's and E.J. Dionne's affirmative action drive for non-Christian ministers in Greece, NY, is fundamentally a Christian or Judaeo-Christian country.  We have acquired an oversensitivity to minority "rights" to the degree that the majority no longer has the right to be comfortable in its identity in public, especially religiously.  That trend would have been abetted if Kagan had prevailed in the majority.  The lesson of this case for me is why we need to ensure that Barack Obama does not get to put another judge on the Supreme Court and why Democrats need to be evicted from the White House in 2016.

"In contrast to a legal regime insufficiently alive to the rights of minorities and dissenters" is a totally dishonest and untruthful opinion as  a minority of non-religious atheists and other minoriity  groups have used the courts to remove any mention of God, Bible readings, prayers from public school curriculums, graduation ceremonies,  pre-game team huddles and religious Christmas exhibits in the public square. . Even a Jesuit University covered a religious symbol at rthe behest of President Obama or his handlers. The USA has become totally subservient to vocal minorities and compliant courts.

@ Warren Patton

No, the only sane solution is for anyone who feels like praying before the meeting of a government entity is to pray in private, in his or her home or car, or even in the restroom of the building where the meeting is to take place.  Don't force people to listen to prayers to a deity they don't worship.

@Angela Stockton

Why can't that be a local decision? Many communities have long traditions of public prayer, and many communities see a lot of value in shared faith.

Let's consider an example. In New York, not far from where I live theres a town called Kiryas Joel. This town is basically a large Orthodox Jewish community, and this is reflected in its laws. The town is totally unlike the other towns around it, and of course many New Yorkers have a lot of animosity towards Kiryas Joel. But I don't. I see no problem with them running their community th way they do.

Now I could concievably say that they have no right to run a town that way- that it represents a breakdown of the seperation of church and state. And I could concievably say that this is problematic because they leave no room for a religous minority to feel welcome. But to say that is to miss the point. The community is an Orthodox Jewish one through and through-religous minorities have no place there. I would not feel welcome there- and niether would an atheist or a Muslim or a secular progressive of any sort. But that doesn't matter- it's thier town, and they have a right to live the life they do and form a community based on that way of life. It isn't the place of outsiders to deem their laws inapporopriate because they fail to meet standards based on ideals that the citizens of Kiryas Joel do not share.

Of  course most communities are not as one dimensional as Kiryas Joel. In most towns where one religion dominates religous minorities will exist and will need to be accomadated. But in answer to Kagan's question- what if I was a Christian living in a majority Muslim or Jewish town that began public meetings with prayers of those religions- in this situation I would respect the community and try to live in harmony with them. I would not place myself above the community, demanding thatt they scrub their public square clean of all elements that did not suit me.

Of course many people would prefer to live in a town where the public square is religiously neutral; where religion is largely kept private and the public suare if completely secular. And that's fine. There are many such communities in America. I'm willing to guess you probably live in one now.  But why does every commiunity need to be subjected to this standard? What about people who don't want to live in neutral communities? Is this pluralism?

Really bad guess, Mr. Patton.  I have lived in six states and currently live in one of the buckles on the Bible belt, where there's no Democrat ever gets elected to statewide office, and there's a "Christian" academy or an evangelical church every half mile--many of them full of "Christians" earnestly praying that their Catholic friends and neighbors be born again so they don't go to hell.  In evangelical la-la land, that's where we Catholics are destined to end up, after all. 

Tell me, would you be offended by a Santeria prayer?  Santeria is a form of voodoo, and Santeria priests offer animal sacrifices.  Residents of south Florida are accustomed to finding dead goats and chickens on their courthouse steps, evidence of prayers for the favorable outcome of a court case.

If you can't quite stomach the mental image of a city council meeting that begins with slashing an animal's throat---well, the IRS recognizes Santeria as a legitimate religion.  So if you allow one denomination in, you have to allow them all, unless you adopt the obvious solution of keeping religion out of the city council meeting.


But... I'm specifically against requiring every denomination to be allowed to lead prayers. If most people in the community are against seeing Santeria rites performed in the town meetings then by all means keep them out. It's not true that you have to either allow in every religion or none at all; you can leave it up to the locals which religions to include. That's what I was arguing for the whole time.

On the other hand, if Santeria was prominent and accepted in a community I think it would be appropriate for them to lead the prayers. Prebably they would have to forgoe the animal sacrifice, for practical reasons, but they could simply give a sermon or something. (Though I don't have any moral objection to animal sacrifice- I mean, I eat goats and chickens, so...)

As for the think about assuming you live in a secular community-well, I assumed you lived in New York. I'm not sure why. I was probably thinking of Jansie and his"we all know this isn't the REAL NY" comment.

As far as the Evangelical Christians (not "Christians" in scare quotes) they have every right to preach about hell and damnation on their own churches and academies. I do think public prayers should avoid controversial topics, like evangelisation and partisan issues. But still, I think it's a local issue.

As far as what Catholics should do in that situation there are two things: first off, they can create their own community for mutual support, and secondly, and more importantly, they should evangelize- try to change hearts and minds. I would object to going overthe heads of the locals to try to call down the authority of the federal government and force them to change. First, it assumes that any local culture that's not 100% hospitable to Catholics has no right to exist. Second, it could create bad blood between the Evangelicals and the religous minorities in their communities.

There are atheists on hthe 'net who make a hobby out of petitioning the government to force communities thousands of miles away from them to change. To do away with a town logo because it contains a picture of a church, or to do away with a war memorial because it contains a cross. (These are actual examples that I've seen,) This is where this sort of thing leads. I say again, why can't local communities decide for themselves to what extent they want to include religion, and which religions they want to include?

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