Town of Greece decision deprives Americans of religious freedom

The five-justice majority opinion in Town of Greece v. Galloway was horrendous from a religious freedom perspective. But the four-justice dissent wasn’t much better. Essentially Greece was a 9-0 decision reaffirming the Court’s 1983 Marsh v. Chambers decision which held that legislative bodies may open their meetings with a prayer notwithstanding the First Amendment prohibition against government establishments of religion. 

The majority doesn't give a hoot that America is a diverse society with a significant portion of the population that does not believe in a deity. And the minority merely pays lip service to diversity so long as the prayers are of a Judeo-Christian variety. With six Catholics and three Jews on the Court, the result is not surprising -- none supported the Jefferson-Madison principle of separation of church and state.

From a nonbeliever’s perspective, the majority’s opinion written by Justice Kennedy and the minority opinion written by Justice Kagan merely split hairs about how proselytizing the prayers can be.

The problem is that both sides consider the United States to be a religious nation, whereas the truth is that our Constitution established a secular nation that guaranteed Americans the free exercise of religion and nonbelief.

To buttress this viewpoint, I would note that the Constitution grants governments no powers in matters of religion. There are four provisions of the Constitutions which bare directly or indirectly on religion. Article VI prohibits a religious test for public office. The First Amendment prohibits Congress (and by incorporation the states) from acts respecting establishments of religion AND guarantees the free exercise of religion. And the Fourteenth Amendment guarantees equal protection of the laws (i.e., treat religions and nonbelief equally).

As I said at the beginning, the majority opinion by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, is horrendous from a religious freedom perspective. I had little-to-no faith in these Christian dominionist justices. So I was not surprised by their pro-Christian position on legislative prayer.

However I was surprised and deeply disappointed by Justice Kagan’s opinion, joined by Justices Ginsburg, Breyer and Sotomajor. I had hoped that they would throw a bone or crumb to nonbelievers – that they (or at least one or more of them) would opine that legislative prayer is inherently religious and, therefore, excessively entangles government with religion and discriminates against nonbelievers.

Marsh and now Greece should be overturned if nonbelievers are accorded full citizenship and equal dignity. Unfortunately, now in my mid-60s, I don’t expect this to occur during my lifetime. Shame, shame, shame on the Supreme Court of the United States for spoiling the dream of religious freedom.

Supreme Court has lost its legal compass

[Take 2 . . . ] 

I have been a student of the U.S. Constitution for nearly 50 years. Yesterday, the conservative Catholic majority on the Supreme Court in Town of Greece v. Galloway simply ignored the First Amendment in giving the green light for town councils starting their meetings with sectarian prayers. 

The Town of Greece decision has nothing to do with free speech and everything to do with Christian dominion. The five conservative Roman Catholics -- Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito -- did an end run around the Establishment Clause of the First Amendment. That clause prohibits government preferring one religion over another or religion over non religion. In other words, under the First Amendment governments must neutrality with respect to religion. 

So what does the Catholic cabal on the Court do if the Constitution gets in their way of allowing governments to promote Christianity -- simple -- ignore it. Justice Kennedy, writing for the majority, made up a sham legal argument like our country's heritage permits town councils to open their meetings with Christian prayers. Strange, it's not my Atheistic heritage or the heritage of minority religions. Rather Christian prayer is an evangelistic tactic of a tyrannical majority (or maybe just a few council members) foisting their religion on their community. In so doing, notwithstanding the majority's holding in Town of Greece, the Constitution's mandate of separation of government and religion is violated. 

And guess what -- there's no appeal of the Supreme Court's decision. The justices are not truly bound by the Constitution because they have life tenure. We can and do criticized them but this bad decision is likely to stand for decades until there is a fundamental change in the composition of the Court.

Oh, and by the way, the justices in the minority weren't much better -- for they would still permit prayers at government meetings as long as the prayers were nonsectarian. Prayer is prayer is prayer. It necessarily causes excessive governmental entanglement with religion in violation of the First Amendment. 

Town of Greece v. Galloway -- another horrendous decision by the conservative Catholic majority

The Supreme Court held 5-4 today in Town of Greece v. Galloway that sectarian prayers at government meetings do not violate the Establishment Clause. I'm sure that James Madison (Father of the Bill of Rights) and Thomas Jefferson (author of the Virginia Statute for Religious Freedom) are rolling over in their graves.

Justice Kennedy wrote in his majority opinion in Town of Greece: "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.” Slip op. at 19.

Unbelievable. Not true. Absolutely false. No. No. No.

As co-counsel with Mike Newdow in Newdow v. Roberts (challenging the religious practices of the 2009 presidential inaugural ceremony) -- representing over 250 nonbelievers -- I can say with certitude (just as Peter Eliasberg said during oral arguments in Salazar v. Buono (2010) that you won't find a Christian cross in a Jewish cemetery) that recitation of Christian prayers is NOT part of the heritage of nonbelievers and other nonChristians.

From this (and other decisions of the Court), I conclude that the Town of Greece decision is a fraud perpetrated by the five conservative Roman Catholic justices in furtherance of Christian dominion. They ignore the Establishment Clause at our peril.

The Quest for Separation of Church and State

I admit that Secularists, including me, seek to cleanse the public square of government sponsored religion.  While we individually, and even as part of a group, have the rights of free exercise of religion and free speech in public squares, we do NOT have a right under the First Amendment to use the instruments of government to aid, promote or endorse religion.  The Constitution not only doesn’t grant government any religious powers, the First Amendment specifically prohibits any governmental act “respecting an establishment of religion.”  In short, government is prohibited from preferring one religion over another, religion over nonbelief or nonbelief over religion. The only realistic way of achieving this mandate is for government to stay out of the religious sphere.

A week ago (Nov. 6), Americans United for Separation of Church and State argued the case Town of Greece v. Galloway before the Supreme Court. Americans United is seeking to require the Town of Greece to limit prayers before its town council to be “nondenominational.” Similarly, in 2005 the ACLU sued Cobb County, Georgia to require the prayers before its meetings to be nonsectarian.  The ACLU lost its case (Pelphrey v. Cobb County (11th Cir. 2008)). It would take a miracle for Americans United's to win because, quite frankly, the Court is stacked with Dominionists who favor some forms of government sponsored religion.  There is also a practical side -- courts don’t to be religion police.

But here's my problem with the case. As an attorney who practiced church-state law and as an Atheist, it is shocking that Americans United and the ACLU – both groups while purporting to support the principle of church and state are actually are or have taking litigation positions that infuse religion into government, albeit of a watered down variety.

Why don’t Americans United and the ACLU sue to prohibit governmental entities from opening any of their meetings with a prayer?

I can think of two reasons why the organizations do not. First, they are afraid that an adverse decision will embolden legislatures, boards and councils to become even more sectarian. And second, they are afraid of alienating a significant number of their members.  

Government sponsored prayer is their only hypocrisy. Neither Americans United nor the ACLU will stand up and fight these church-state violations:

• Eliminate congressional chaplains.
• Administer the presidential oath without “So help me God.”
• End the Supreme Court’s practice of opening its sessions with “God save the United States and this honorable Court.”
• Remove “under God” from the Pledge of allegiance.
• Repeal “In God We Trust” as our national motto. 

I call upon our branches of government to cease and desist from engaging in the above unconstitutional establishments of religion so that all Americans – both the religious and nonreligious – can enjoy the rights and privileges of being an American.

I also hope that Americans United and the ACLU will take notice that until the above infringements are remedied, religious freedom will be incomplete.  Congress, the President and the Supreme Court serve as role models for the rest of the nation and if they can violate the Constitution, other governmental entities will feel that they can too.

[Note: I have been a member of the ACLU for over 40 years and a member of Americans United for many years. Tho I support the overall mission and programs of both groups, I feel that it is important to speak out about what I view to be their major weakness – their failure to advocate for complete separation religion and government.  I also served as co-counsel with Michael Newdow in Newdow v. Roberts which challenged the religious practices of the 2009 presidential inaugural ceremony.]

Time for the Supreme Court to End Government Sponsored Prayer

Last Wednesday (Nov. 6) at the Supreme Court, I joined a group from the Secular Coalition of America in support of the plaintiffs in the Town of Greece v. Galloway who opposed Christian prayers before the town’s council meetings. I have since come to realize that that was a false choice – one between Christian prayers and watered down prayers. What about no prayers at all?  Isn’t that what the “No Establishment” Clause requires?  What part of “no” don’t we understand?

The seed of illumination began when I heard Americans United legal director Ayesha Khan tell reporters after oral arguments: 

Participating in one’s local government is a universal right of citizenship. It should not be conditioned on recitation of the Lord’s Prayer or participation in any other prayer that is unique to a particular faith tradition. Town residents attend these meetings not as spectators but as participants. Children's sports teams are invited to receive awards, people come to ask the board to take particular action and they come to seek zoning permits.  Exercising those rights and seeking those important benefits should not be conditioned on bowing one’s head in recognition of Jesus Christ.

It is important to understand that we are not asking the board to discontinue its practice of presenting prayers.  We are asking that citizens not be pressured to participate in those prayers and that the prayers be nondenominational and [in audible].  Our national motto is “In God We Trust,” not “In Christ We Trust.”  Our Pledge of Allegiance refers to “one nation under God,” not “one nation under Jesus,” “under Allah” or “under Buddha.”

We brought this lawsuit because the Town of Greece has chosen to thumb its nose at this long standing historical and constitutional provision that has served us so well.  Under the town’s view, residents who come to participate in these meetings to be asked to join in a prayer that promises eternal hell fire to anyone who does not accept Jesus Christ as their savior.  That can’t possibly be constitutional.  We hope that the Supreme Court will agree that civic participation should not be conditioned on compromising one’s religious beliefs.

Something was missing from Ms. Khan’s remarks, so I asked her: “What do you say to Atheists that don’t believe in god?  They shouldn’t have to hear even nondenominational prayers.” 

Ms. Khan dodged the latter question by responding: “Yes, as Professor Laycock [who argued the case on behalf of the plaintiffs] said this tradition that the country has followed does in fact not recognize the increasing diversity of this country.  We do believe under the proposal we have made that Atheists would be allowed to come forward and present a prayer, as would polytheists or anybody else who comes from a more diverse tradition than the monotheistic one that the Court opened with today.”

While the Americans United’s “sausage” proposal may be the best we could hope for given the religiosity of the Supreme Court (six Roman Catholic and three Jewish justices), it doesn’t cure the problem of government sponsored religion.  It’s time for the Supreme Court to say that prayer – as a part of governmental meetings – violates the No Establishment Clause of the First Amendment.

And so it comes to past that after years of supporting Americans United, I painfully conclude that the organization is a front for mainstream Protestantism. This really should not be surprising.  Originally, it was founded in 1947 as Protestants and Other Americans United for Separation of Church and State to oppose Catholic influence on government.  The organization has since dropped “Protestants and Other” from its name and added Christian fundamentalism to its opposition list.  It is also notable that its executive director is an ordained Protestant minister and has two Christian ministers and two Jewish rabbis on its board of trustees.

The unmistakable fact remains that Americans United supports government sponsored religion, including prayer at government meetings, the motto of “In God We Trust”, the insertion of “under God” in the Pledge of Allegiance and the Supreme Court’s opening sessions with a prayer.  Americans United’s nondenominational half-measure is analogous to granting gays the right to enter into civil unions instead of marriage.  Americans United’s position is undignified.  It’s wrong.

It is important to make these final comments.  First, while some prayers are more sectarian than others, all prayers are inherently sectarian.  Second, removing the wrongful practice of government sponsored religion from the public square is not being hostile to religion.  Rather, it is being faithful to the Constitution which prohibits government from preferring one religion over another, or religion over nonreligion or, in all fairness, nonreligion over religion.  Third, the absence of religion is not the same as being pro-Atheist.  Rather, it leaves to individuals and private institutions they may associate with the practice of religion.  And fourth, the Constitution created a “limited form of government,” granting Congress, the president and the judiciary no religious powers or duties.

If the Supreme Court is faithful to the Constitution, it will first cease opening its own sessions with the prayer “God save the United States and this honorable Court” and then tell the Town of Greece “NO MORE PRAYERS.”