by Joseph D. Becker
On a recent visit to a local post office in Westchester, I was surprised to see, on the counter facing the public, a statuette of a crucifix. I called the supervisor to point out that, under the American rule that separates church and state, it was improper to display a crucifix in a federal facility. “Yes,” he said, “but is that all you have to worry about?” He made light of the matter. Nevertheless, a few days later the statuette was gone.
The incident brought to mind a recent decision of the Supreme Court that would have encouraged the postman in his error. Last May, the Supreme Court rendered a decision, by a vote of 5-4, that should trouble Jews and other religious minorities. The response has been surprisingly muted. The court held that it was quite alright for the governing council of a New York town to employ Christian ministers (in effect, only Christian ministers) to pray, in Christian terms, for divine blessing on its deliberations.
Recall that the first directive of the Bill of Rights prohibits the enactment of laws “respecting an establishment of religion.” When the first 10 amendments were adopted in 1791, the similar prohibition in several state constitutions had acquired various meanings, from Virginia’s bar of support for any religion to New York’s denial of preference for particular religions. The federal prohibition evolved from these. By 1982, the high court could hold that the “clearest command on the Establishment Clause is that one religious denomination cannot be officially preferred over another” (Larson v. Valente).
Now, the Supreme Court, by Justice Kennedy, permitted the governing board of the Town of Greece, New York, to open its meetings with Christian prayers delivered by Christian ministers to a religiously diverse audience. Clergymen chosen to deliver prayers were selected from congregations listed in the local town directory; nearly all were Christian. Non-Christian prayers were almost never offered. When a group of citizens sued to stop the practice, the Supreme Court sustained it.
Typically, the prayers began with an invitation to the Lord to send his spirit to all attending the meeting, making it plain that the request was made “in the name of our brother Jesus.” At one such meeting, a Ms. Galloway (among others) objected to the prayers: she thought they were “offensive,” “intolerable” and an affront to a “diverse community.” The response was feeble: the town now invited a Jewish layman, a member of Bahai, and a Wiccan priestess to deliver prayers. That did not stop Ms. Galloway: she sued in the local federal court for more inclusive prayers. In reliance on Marsh v. Chambers (1983), the district court approved the prayers, noting that in the U.S. House of Representatives prayers were offered “in the name of our Lord Jesus Christ.” In due course, the Supreme Court reaffirmed the district court’s approval of the practice. The five-justice majority noted that the First Congress provided for the appointment of Christian chaplains only days after approving the Establishment Clause of the Amendment. Such Christian practices by governing bodies, federal, state, and municipal, were accepted early and regarded as tolerable exceptions to the anti-Establishment Clause.
The clause has launched the high Court into a sea of troubles, evident in numerous cases in which the Establishment issue was decided by a bare majority of the Justices. Here, Justice Kagan led the minority with an opinion that stressed the rule of Larson v. Valente (above). Making matters worse, she asserted, was that the preference occurred when citizens of Greece were engaged in the process of government.
Justice Kagan grants that, from the beginning of the Republic, when the country was overwhelmingly Protestant, it was an approved practice in Congress (and state legislatures) to open sessions with a chaplain’s prayer. But here, more than 200 years later, in a religiously transformed country, the Town made no effort to ensure that the prayers offered were inclusive of the several religions represented in Greece, by rotation of chaplains or otherwise. In the Marsh case, by contrast, the Supreme Court regarded the prayers as “in the Judeo-Christian tradition” in which “the chaplain had removed all explicitly Christian references at a senator’s request.” Moreover, where prayers were offered in legislatures (as in Marsh), the prayers were aimed not at the general audience of citizens but were directed to the small body of legislators themselves. Also, the great City of Rochester was next door to Greece, where clergymen of every faith were available but not pursued.
On other occasions the Court has interpreted provisions of the Constitution without obeisance to the usages of 1791. The question is compounded by the fact that, strictly speaking, we are not here confronted by text requiring constitutional interpretation: the text prohibiting establishment does not make an express exception for Christian religion; the exception claims support from 18th century practice and its implications. That raises the familiar question whether the anti-Establishment clause (and the exception for Christian prayer) is to be interpreted in 18th century terms or by modern lights.
Although there is a contrary school of “originalists” who insist on 18th century expectations for constitutional terms, that is not the preferred position. Consider, for example, the prohibition of “cruel and unusual punishments” of the Eighth Amendment, which enabled the rejection of common law barbarities — in 1765, one John Ward was hanged for stealing a watch and a hat — in favor of milder measures. The changes reflect the great transformation in the social attitudes and influence of post-18th century Americans. Since 1791 there has been a metamorphosis in the religious make-up of Americans, when almost all were Protestant; that is sufficient warrant for adjustment of a constitutional norm (not text) to avoid granting exceptional advantage to Christian prayer. There are more than six million Jews, four million Buddhists, 2.6 million Muslims, and 1.5 million Hindus in the country (among others) who should be reassured that, at least in general ceremonial moments, America is neither Christian nor any other sect.
Joseph Becker is the founder of Becker/Glynn, a Manhattan law firm. He served for many years as an adjunct professor of law at New York University.