05/06/2014 10:33 pm ET Updated Jul 06, 2014

It's All Greek to Me

The Supreme Court moved backwards this week.

In Town of Greece, New York v. Galloway, the Court upheld the practice of opening monthly town board meetings with a prayer.

The facts of the case were fairly breathtaking. The town of Greece has monthly meetings of its town board. At those meetings, in the lingo of lawyers, the board performs both "legislative" and "adjudicative" functions. In other words, the board debates and votes on ordinances that will govern the town as a whole, the so-called legislative function, and the board also entertains petitions and requests from attending citizens, e.g., requests for zoning variances, the so-called adjudicative function.

In 1999, Greece's newly elected town supervisor decided that town meetings should open with a prayer. And, from that point forward, they did. The prayers, however, were offered exclusively by Christian ministers or Catholic priests. These prelates would be invited to the rostrum with the town seal in the center of the meeting room. They would then face the public and invite them to stand and pray.

Between 1999 and 2010, there were roughly 130 invocations. Of those, at least two thirds expressly invoked and praised two of the deistic giants of Christendom, Jesus and the Holy Spirit, seeking inspiration from the third person of the Trinity in the holy name of the second. The other third were directed to the "God of all creation," the "Heavenly Father," or the "Kingdom of Heaven."

After Susan Galloway complained and filed her lawsuit, the town had a Jewish layman do one prayer and the chairman of the local Baha'i temple another; a Wiccan priestess who read about the controversy in the press apparently volunteered to so as well. None of this outreach continued, however, and so the opening prayer reverted to its exclusively Christian messenger and its more or less predominantly Christian message.

This was an easy case.

The Establishment Clause of the First Amendment requires that government be strictly neutral when it comes to religion. It can't favor one denomination over another; it can't proselytize on behalf of one faith; and it cannot establish any one faith as the state religion. For years, there was an ongoing dispute as to whether this ban on establishment, along with all the other requirements of the Bill of Rights, actually applied to the individual state and local governments. But this has pretty much been resolved in favor of the notion that it (and they) have been incorporated against the states via the due process clause of the Fourteenth Amendment.

So, the reality here is that the town of Greece was pretty clearly violating the law.

It routinely sanctioned an explicitly Christian prayer in an environment where non-Christian citizen-participants could easily feel coerced into participation lest they alienate the very officials before whom they presumably had business.

But four justices on the Supreme Court -- Kennedy, Scalia, Alito, and Thomas -- and the Chief Justice -- Roberts -- did not see it that way.


There were four reasons given by the Justices themselves. First, they claimed that the sanctioned practice of opening Congress's (or any of the various state legislative) sessions with prayers made it permissible in this case. Second, they asserted that any requirement that localities monitor the content of prayers so as to make them, in effect, non-denominational, was itself constitutionally impermissible. Third, they claimed that the locality in this case -- the town of Greece -- was not required to look outside its borders so as to expand the denominational list of religious who it could ask to conduct the prayer. And finally, though the incorporation debate ended long ago, it is a testament to either Justice Thomas's independence or stubbornness that he thinks it hasn't. In any case, he claimed that Establishment Clause was not binding on the states and localities.

None of these ostensible justifications work. In fact, they are so bad that they suggest something else is going on...

And that "else" may be very disturbing.

The cases blessing opening prayers before Congress or state legislatures have been very clear in noting that the prayers in those instances were directed to (and offered for the benefit of) the lawmakers themselves, not the public. They were offered on the floors of the various chambers, where the public was nowhere to be found, and the lawmakers themselves were performing legislative, not adjudicative, functions. Consequently, there was no risk in those cases that citizens would be coerced into religious participation simply to curry favor in a setting where they were actually asking for something from state or federal officials. In fact, where coercion was even remotely possible -- for example, at hearings where the public testifies -- no prayers were permitted. In contrast, of course, the prayer in Town of Greece was directed to the public, some or all of whom had business before the town board.

Over the years, congressional prayer also has been relatively non-denominational, especially in the last century, and in any case has been given by a multitude of religious. The notion advanced by the Justices that officials can't insist on non-denominational prayer or, absent that, be inclusive in searching out a variety of prayer-givers, belies the actual facts.

Because precisely that has been going on all over the country . . .

All of the time.

Just not in Greece, NY.

The mistakes made by the Court majority here were both pedestrian and somewhat juvenile. Competent appellate jurists do not ignore facts, especially where, as here, they all agree that the outcome is "fact sensitive." Nor do they claim to be adhering to settled precedents when the actual facts render those precedents inapposite.

But that is what happened here.

The five who voted in favor of the town of Greece's prayer are all Catholics. One of them, Justice Alito, berated the dissent as "really quite niggling" for insisting that a small town look for religious from different denominations, effectively resting constitutionality on the ostensible good faith evidenced by restricting searches to the four corners of a small town. To Alito, of course, there was no exclusion because his people made the cut

But would he -- or any of the others in the majority -- have had the same view if the case involved a town whose geography resulted in a decades-long parade of imams offering the opening prayer, and praising Allah, before the town board went to work?

Justice Holmes once said that hard cases make bad law.


So do easy ones.