By Mike Appleton, Weekend Contributor
“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”
-Epperson v. Arkansas, 393 U.S. 97, 104 (1968)
“This commission chooses to stand by the tradition of opening its meetings in a manner acknowledging the beliefs of a large segment of its constituents.”
-Brevard County (Florida) Commission Chair Mary Bolin Lewis (August 15, 2014)
On August 19th the County Commission in Brevard County, Florida voted unanimously to reject a request by the Central Florida Freethought Community, an organization of atheists, agnostics, humanists and free-thinkers, to be added to a rotating list of groups invited to give the opening invocation at commission meetings. Instead, the commission approved a letter drafted by the county attorney offering the group three minutes to speak during the public comment portion of its meetings. According to the letter, the rejection was appropriate because, “The prayer is delivered during the ceremonial portion of the county’s meeting, and typically invokes guidance for the County Commission from the highest spiritual authority, a higher authority which a substantial body of Brevard constituents believe to exist.”
The Brevard County decision comes on the heels of the Supreme Court’s opinion in Town of Greece v. Galloway, 572 U.S. ______ , 134 S.Ct. 1811 (2014), a case that more than anything else illustrates that the current state of Establishment Clause jurisprudence is, to put it bluntly, a mess.
The interpretation and application of the Establishment Clause has always been problematic. In Everson v. Board of Education, 330 U.S. 1 (1947), Justice Black, after describing the history of the clause, quoted approvingly the words of Thomas Jefferson that its intent is to erect “a wall of separation between church and state.” 330 U.S. at 15. Writing for the majority, he then proceeded to approve a New Jersey school board plan to reimburse public transportation costs incurred by the parents of both public and Catholic school students, prompting a dissenting Justice Jackson to chide the majority for “its failure to apply the principles it avows.” 330 U.S. at 25.
In Walz v. Tax Commissioner, 397 U.S. 664 (1970), Chief Justice Burger called the Establishment Clause a “tight rope,” requiring government to maintain a “course of constitutional neutrality,” neither endorsing religion nor interfering with its free exercise. 397 U.S. at 669, 672. The Walz court upheld the constitutionality of a tax exemption granted by the New York City Tax Commission to religious organizations on real property used solely for religious purposes.
A year later the Court announced a three-prong test to determine whether government has failed to maintain the constitutional neutrality mandated by the Establishment Clause: 1. The statute must have a secular legislative purpose; 2. Its principal effect must neither advance nor inhibit religion; and 3. It must not create “excessive entanglement” with religion. Lemon v. Kurzman, 403 U.S. 602 (1971). The Court invalidated laws in Pennsylvania and Rhode Island providing for partial taxpayer funding of teachers’ salaries and other expenditures for church-related schools, holding that “the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.” 403 U.S. at 614.
The Lemon test has been applied by the Court in a number of cases. For example, in Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), the Court struck down a New York statute giving tuition grants and other financial support to non-public schools. And in Wallace v. Jaffree, 472 U.S. 38 (1985), the test was applied to throw out two Alabama statutes solely intended to reintroduce prayer in public schools. But as she had done the previous year in Lynch v. Donnelly, 465 U.S. 668 (1984), Justice Sandra Day O’Connor wrote a concurring opinion questioning the usefulness of the Lemon test and proposing an alternative endorsement test.
In Marsh v. Chambers, 463 U.S. 783 (1983), the only case other than Town of Greece to consider the constitutionality of legislative prayer, the Lemon test was entirely abandoned. Marsh involved a challenge by a Nebraska state legislator to the state’s hundred-year-old practice of employing a chaplain to begin each legislative day with a prayer. After reviewing the history of the practice in Congress and noting similar policies in a majority of states, the Court concluded, “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. … a tolerable acknowledgment of beliefs widely held among the people of this country.” 463 U.S. at 792. In dissent, Justice Brennan characterized the holding as “carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.” This was necessary, he argued, because “if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.” 463 U.S. at 796.
The decision in Town of Greece v. Galloway rests on even shakier constitutional legs. Its town board did not institute legislative prayer until 1999, and for the next eight years not a single invocation was given by other than a Christian member of the clergy. The invocations were frequently sectarian and public attendees at board meetings were sometimes asked to stand or join in prayer. When a protest was lodged by Susan Galloway, a Jew, and Linda Stephens, an atheist, the town responded by inviting several non-Christians to give the invocation, but thereafter reverted to the former practice of inviting only Christian ministers. Furthermore, as noted in the dissenting opinion of Justice Sotomayor, local governing bodies differ from state and federal legislatures because members of the general public routinely appear to present petitions, secure zoning and variance determinations or to conduct other business requiring local approval, thereby creating subtle but undeniable pressure to avoid offending council members or commissioners.
A majority of the Court was unmoved by the arguments of Ms. Galloway and Ms. Stephens. In his plurality opinion, Justice Kennedy relied heavily upon the tradition and history invoked by the Court in Marsh. And he attempted to soften the impact of the decision by emphasizing legislative prayer as a “symbolic expression.” 572 U.S. at ____. “Ceremonial prayer,” he wrote, “is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs.” His words reminded one of Justice Brennan’s dissent in Lynch v. Donnelly, supra, in which he described the national motto, “In God We Trust,” and the reference to God in the Pledge of Allegiance as a form of “ceremonial deism,” which “have lost through rote repetition any significant religious context.” 465 U.S. 668, 717.
While Justice Kennedy sought to soft-peddle the sectarian aspect of legislative prayer, Justice Alito was more direct. His concurring opinion, intended solely to address the principal dissent, dismissed Justice Sotomayor’s suggestions that a policy of requiring non-sectarian prayer or seeking more diversity among those invited to give the invocations would obviate concerns over the Establishment Clause. The dissent’s objection, he concluded, “is really quite niggling.” 572 U.S. at ____.
The impact of the Town of Greece decision is actually quite radical. Legislative prayer need only rely on history and tradition to satisfy constitutional requirements on a prima facie basis. And with the modifications introduced by the new Niggling Test, the concerns of religious minorities and non-believers alike may be ignored in favor of majoritarian religious beliefs. As Justice Kennedy noted, “Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation.” 572 U.S. at ____.
The Brevard County Commission has taken the Court at its word, almost literally, and we can expect similar responses across the country. The decision is not a reaffirmation of religious pluralism. It is rather a reaction to it. Town of Greece has already become a weapon to be employed against the enemy in the mythical “war” on Christianity.
Source: David Berman, “Atheist group may sue over county invocation,” Florida Today (August 18, 2014).
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