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The Conservative Curmudgeon
May 9, 2014
Supreme Court Decision Reaffirms Religion’s Role in American Life
by Allan C. Brownfeld
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ALEXANDRIA, VA — In a major decision last week on the role of religion in government, the Supreme Court ruled that the Constitution allows town boards to start their sessions with sectarian prayers.
Justice Anthony M. Kennedy, writing for the majority in the case, Town of Greece, New York v. Galloway, et al., said that Greece, a town in upstate New York, had not violated the Constitution by starting its public meetings with a prayer from a “chaplain of the month,” who was almost always Christian. The prayers were ceremonial, Justice Kennedy wrote, and served to signal the solemnity of the occasion.
The separation of church and state was not meant to establish, as many today seem to believe, separation of religion and state. America was ... to be a nation that recognized its dependence upon a Supreme Being.
The decision built on one from 1983 that allowed prayers at the start of legislative sessions. Justice Kennedy said the prayers in both settings were “meant to lend gravity to the occasion and reflect values long part of the nation’s heritage.”
Town officials in Greece said members of all faiths, and atheists, were welcome to give the opening prayer. In practice, however, almost all of the chaplains were Christian. Some prayers were explicitly sectarian, with references, for instance, to “the saving sacrifice of Jesus Christ on the cross.”
Two town residents sued, saying the prayers violated the First Amendment’s prohibition of government establishment of religion. They said the prayers offended them and, in Justice Kennedy’s words, “made them feel excluded and disrespected.”
But, he said, the relevant constitutional question was not whether they were offended. “Adults often encounter speech they find disagreeable,” he wrote. “Legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”
Justice Kennedy referred to history, pointing out that the same Founders who wrote the First Amendment with its prohibition on the establishment of a government religion also provided protections for religious liberty and provided money for congressional chaplains.
“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,” he wrote.
The separation of church and state was not meant to establish, as many today seem to believe, separation of religion and state. America was not to be a Protestant, Catholic, or Jewish nation — but it was to be a nation that recognized its dependence upon a Supreme Being. On our coins is written, “In God We Trust.” Sessions of Congress begin with prayer. The Supreme Court itself starts its meetings with prayer.
What the First Amendment really was saying has been all but forgotten. Judge Thomas Cooley, a leading constitutional scholar of the 19th century, put it this way in his Principles of Constitutional Law: “By establishment of religion is meant the setting up or recognizing of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where a proper recognition of Divine Providence in the working of government might seem to require it, and where it might be done without drawing invidious distinctions between different religious beliefs, organizations, or sects. The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and to the same extent as formerly.”
Reference to God has been present in our public life from the very beginning. The Declaration of Independence acknowledges God in four separate places. The Framers of that instrument announced that the colonies were assuming “the separate and equal station to which the laws of nature and of nature's God entitle them.”
The Declaration states: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator, with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.”
The Court’s majority has quite properly reaffirmed religion’s role in our public life, and in doing so, it has been true to our history.
Those who signed the Declaration proclaimed: “And for the support of this Declaration, with the firm reliance in the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.”
The Continental Congress opened its sessions, beginning in 1774, with prayer delivered by a clergyman. In 1776, regular chaplains were authorized and subsequently appointed by Congress. In 1778, Congress provided an annual salary for chaplains.
In 1787, Congress adopted the Northwest Ordinance for the governance of the Northwest Territory. Article 3 proclaimed: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged.”
Those who seek to create in America an entirely secular society seem unaware of the historic connection between religious faith and public life in our history. Professor Charles Rice, in his book, The Supreme Court and Public Prayer, notes, “... the public life of the American states was based upon the unapologetic conviction that there is a God who exercises a benevolent providence over the affairs of man. This is not to say that all Americans then recognized God, or that there was agreement on all the details of His attributes. But to those who assert that the First Amendment was designed to prevent the government from recognizing God and praying His aid, it can rightly be said that they will have to find evidence for their claim elsewhere than in the history of the period prior to 1787.”
In his book, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, Yale law professor Stephen Carter argues that religious devotion has been trivialized in public life in recent years. He laments that because the United States was founded on the concept that our very liberties come from God, removing God from the public sphere delegitimizes the very basis upon which we believe in individual rights.
In the latest Supreme Court decision, Justice Kennedy suggested that some prayers may be unacceptable if offered consistently, including ones that “denigrate non-believers or religious minorities, threaten damnation or preach conversion.” But without proof of “a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” he wrote, “a challenge based solely on the content of a prayer will not likely establish a constitutional violation.”
The Court’s majority has quite properly reaffirmed religion’s role in our public life, and in doing so, it has been true to our history.
The Conservative Curmudgeon is copyright © 2014 by Allan C. Brownfeld and the Fitzgerald Griffin Foundation. All rights reserved. Editors may use this column if this copyright information is included.Allan C. Brownfeld is the author of five books, the latest of which is The Revolution Lobby (Council for Inter-American Security). He has been a staff aide to a U.S. Vice President, Members of Congress, and the U.S. Senate Internal Subcommittee.
He is associate editor of The Lincoln Reveiw and a contributing editor to such publications as Human Events, The St. Croix Review, and The Washington Report on Middle East Affairs.
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