Town of Greece v. Galloway: 'Offense ... does not equate to coercion'

Dividing on familiar lines, the Supreme Court has ruled that the town of Greece, New York's policy of opening legislative meetings with prayer does not violate the First Amendment. I mentioned this case when it was being argued last year: a Jew and an atheist contended that, while the town had an open invitation to ministers of all faiths to open meetings with their prayers, the ritual was overwhelmingly and oppressively sectarian in nature. To forbid prayer entirely was a hopeless proposition since, as Justice Kennedy notes in his opinion, Congress hired a chaplain for opening prayers pretty much simultaneously with the adoption of the First Amendment, and obviously there could be no contradiction there! Instead, the original plaintiffs insisted that a nonsectarian standard be set for the prayers that would have been violated, for instance, by invocations of Jesus. Kennedy writes that the Supreme Court should not assume the power to define what is or isn't nonsectarian -- but if not the court, then who? In his view, the courts should not be concerned with the content of opening prayers unless they are shown to be derogatory toward other faiths or non-believers, or if a "pattern and practice of ceremonial legislative prayer is alleged to be a means to coerce or intimidate others." In the case of Greece, the majority finds no evidence of coercion or intimidation. Kennedy takes less seriously yet the claim of Galloway et al that "the prayers gave them offense and made them feel excluded and disrespected." He answers:

Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. See Elk Grove Unified School Dist.v.Newdow, 542 U. S. 1, 44 (2004) (O’Connor, J., concurring) (“The compulsion of which Justice Jackson was concerned . . . was of the direct sort—the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree”). 

Justice Kennedy thus rejects the idea that the First Amendment confers "freedom from religion," at least in the public sphere. As long as prayers don't "denigrate nonbelievers or religious minorities, threaten damnation or preach conversion," the Supreme Court advises Americans to lighten up.

The gist of Justice Kagan's dissent is that the First Amendment obliged Greece to be more aggressively inclusive. In her view, it wasn't enough for the town to issue its invitation; officials should have sought out and actively recruited representatives of diverse faiths to deliver opening prayers in order to live up to their avowed pluralism. Governments have a positive obligation to cultivate pluralism that Greece, in Kagan's view, has not fulfilled. Kagan also accepts, as Kennedy doesn't, that a preponderance of Christian prayer in a public forum has a tendency to stigmatize non-Christians who refrain from bowing their heads and so on, although Kennedy points out that any such tendency was not acted upon in Greece. Kagan and Justice Alito, who wrote a concurrence to Kennedy's opinion chiefly to dispute points in Kagan's dissent, see the power of prayer very differently. Kagan seems to see sectarian prayer as inherently divisive in a way remedied only by programmed diversity. Alito recalls a Founding moment when the Continental Congress squabbled over opening prayers but finally recognized that prayer could be unifying regardless of which denomination's representative gave the prayer. To him it's a big deal that puritanical Sam Adams proposed that an Anglican open the first session. The moral, it seems, is that Sam wasn't offended or subject to coercion by hearing an Anglican prayer. But Sam also knew that the Anglican wouldn't be the only divine praying over Congress, so how was he different, apart from his initial concession, from the religious minorities in Greece? For Alito, the difference boils down Greece's "clerical employees [doing] a bad job in compiling the list of potential guest chaplains." That doesn't rise to the level of a constitutional case in his view: "[A] unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a “best practices” standard." Kagan suspects that this was not a mere "bad job," while Alito (and Kennedy) presume good faith, so to speak, on the part of the Greeks. That's where we're stuck, it seems, until a critical mass of Americans rises to demand a new constitutional understanding of the necessary limits on religious expression in the halls of government in a time of greater and more irreconcilable religious diversity than most Founders could have imagined or desired.