Religious Pluralism and the Niggling Test

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).

The views expressed in this posting are the author’s alone, and not those of the blog, the host, or other weekend bloggers. Weekend bloggers post independently, without pre-approval or review. Content and any displays of art are solely their decision and responsibility.

20 thoughts on “Religious Pluralism and the Niggling Test

  1. wrxdave– I could not have said it better. With tongue firmly planted in cheek-I suggest that, perhaps, the solution is to secure the services of a Unitarian to offer the prayer. The Unitarians have evolved into a “welcome all” community of truth-seekers. They neither insist on a defined deity nor deny its existence, rather tending to allow for the possibility. They firmly state that they honor the good and ethical in all religious beliefs.
    On a more serious note: Another area of the discussion is that many tenets of our constitution came amid extensive and serious discussion of “the tyranny of the majority.” One wonders why the Supremes find this so hard to grasp.

  2. One thing about Marsh and its ceremonial deism exception is that the court noted how what was once a Christian invocation had been change to a non-denominational invocation. In Greece that changed to a specific religion’s invocation, but to allow different religions the ability to perform invocations on a non-discriminatory basis. Greece, NY is now testing the limits on that because now they only permit invocations to be given by established congregations in the community. So if you are Religion X and Religion X doesn’t have a church in Greece, NY but is in a different town, then Religion X won’t be able to apply to give the invocation.

    This doctrine is appealing until somebody gives an invocation from some religion or belief that a fair number of people find objectionable in Greece, NY and then we’ll see how content-neutral the invocation will be in an ‘as-applied’ real world test.

  3. I’m pleased to see this well researched and thoughtful post by MikeA has gotten some thoughtful responses. The macro perspective is this country is always striving to find the balance. The zealots @ both extremes are constantly trying to “win” and the courts are righteous in trying to find the right answers to complicated questions. And, the courts have to do this w/ zealots from both sides SCREAMING @ them. It’s like a basketball player trying to make a free throw w/ fans behind the basket and in their line of sight jumping up and down screaming. We’ve all seen that. Our justice system is ALWAYS striving to get it right.

  4. So the test for Broward County is popularity of a diety?
    “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.”

    Of course the proof of this will be in the pudding as they say. While I am sure that while they will tolerate Muslims and Jews giving the invocations, will they be broad minding enough for Pagans of various ilks? What about devotees to the Flying Spaghetti Monster (which has gone from a mere exercise in sarcasm to having real devotees). Perhaps those don’t meet the “Substantial number if residents believing exist” test though; so the true test will be when the Satanists wish to give the invocation. They consider Satan their “Higher Power”, and I believe that even in Broward County a majority would probably claim a believe that he “Exists”, so it meets the letter of the Attorney’s opinion, but likely not its “spirit”.

    In any case, the calling for “Spiritual Guidance” before any Government function, from any diety, clearly tends to endorse or establish some affiliation with a given religion or diety. As a Christian I can see this as a clear and undesirable violation of the Establishment Clause. Tradition is never an excuse for violating the Constitution or Bill of Rights, if it were, Jim Crow would be alive and well.

    Those who invite religion into government, invite Government into religion. Government screws the pooch on enough – keep them well away from me and my relationship to my Lord and Savior.

  5. The mythical War on Christianity, indeed. I does seem to be an exercise in showing who has more “power”. “My God is better than yours and you will submit”. Jill has a great idea, if they want a ceremonial show, why not simply appeal to everyone’s humanity, Christians, Jews, Hindu, Buddhist, etc, we are ALL human, no? Has nothing whatsoever to do with Secular Humanism or atheism. As Jill said a simple statement would suffice. “Let us endevour to do the People’s work here”. And no it’s not conjuring up Communism. “We the People”, remember?

  6. Jill,

    “No deity needed”–The non-theist position.

    This is not an easy thing if a peaceful consequence is desired.

    While I wish no offense a specific consequence is not something I am looking for. That is Breyer’s desire. I wish to follow the Constitution and unfortunately I cannot see the establishment clause interpreted in any sense proper without allowing for prayer if desired. This does leave the non-theist out.

  7. Eleazer,

    How about something like: “let’s try to do the right by the citizens in all our actions”. No deity needed, just a reminder of what political people are supposed to be doing in the first place. As this is said, the religious can make a silent prayer and the non-religious with the religious alike can endeavor to do this.

    That’s an invocation everyone should be able to get behind.

  8. I appreciate the time involved in the article and certainly agree the establishment clause is in a state of disarray.

    In my view, the Court beginning in the mid-twentieth century left behind the original meaning of the clause and took upon itself the moving of the goal posts. Unfortunately, they cannot seem to agree through the ensuing decades where to keep the posts. They keep moving them. The Breyer mode of looking for the “purposes and consequences” apparently necessitates the constant moving as they keep changing their mind as to just what the purpose is/was and the consequences are case by case. Remember the day back in about 2006 when they issued the two Ten Commandment cases on the same day with differing results in each? How are the lower courts to know what to do?

    I do disagree specifically with this–“the concerns of religious minorities and non-believers alike may be ignored in favor of majoritarian religious beliefs.” In Kennedy’s opinion he says, ” so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search
    beyond its borders for non-Christian prayer givers in an effort to
    achieve religious balancing.” It seems to me the opinion does not allow for majoritarian abuse of one religion over another. Religions within their community would have to be fairly represented if they wanted to be.

    I would agree it does not allow time for non-believers to pray. But does one not see the obvious problem there? To whom are the non-believers to pray to? If prayer is to be allowed at all by SCOTUS then non-believers would be disallowed by definition.

    I do think there is a cultural war between theism and non-theism. Non-theists want no prayer at all and theists do. In that sense Greece was a victory for the theists and a loss for the non. Unless someone wiser than me can see a way to accommodate both it seems like a zero sum affair.

  9. This is another reason why this should not be allowed or allowed for all. It actually diminishes religion and Faith because it is “ceremonial”. My personal feeling is those who are trying to make this into a “Christian nation” (while ironically decrying Iraq, Iran and other theologies hurt their cause by making prayer, etc nothing more then reciting a news article or a joke someone told.

  10. All these legislatures and their mandated supplication to the almighty are absolute proof that god does not exist and prayer does not work! Or perhaps god is a a really crappy god. Either god choses very poor earthly minions or else he has some pretty terrible goals that he wants to accomplish.

    Seriously, when a majority would like to silence a minority, that should scare people. There are religious people who value not only their own freedom but the freedom of other human beings. For this reason, they do not try to use the govt. to impose their spirituality, to compel the conscience of others. There are few things more unspiritual, more unkind, more disrespectful, vain, hubristic and just plain wrong that to compel other people’s conscience. A person who is strong in their faith lives by example, not by cramming down their beliefs on others.

  11. Well done Mike. This “niggling” test is troubling. It is meant to prop up Christianity at the expense of non-Christian religions and atheists. What would a majority of voters do if the atheists or Jews or Hindu’s won the majority of the seats in the county board? I am guessing that a majority of voters would be up in arms.

    • rafflaw – one’s religious affiliation is not a qualification to run for office, especially on a lower level. And I have been at public meeting where the prayer or invocation was given by someone who was not Christian.

  12. Actually, we could use all the spiritual help we can get right now. We are currently about to set a new record for rainfall in a single day. It has already rained over 5″ in my area, but the official rain gauge is 25 miles away. My backyard is a swimming pool and if it rains much more it is coming in the house.

  13. Nice article. I do agree with the Commissioners. Hard to get higher spiritual guidance from a group who does not recognize a higher spirit. Mike, they seem to have a list of rotating spiritual guiders and I am sure they are not all Christians. I know that my local government uses a list of ministers from all faiths throughout the community. They figure they can use all the help they can get.

  14. Nick:

    That was my fault. When I posted the piece, I forgot to tap the little “permit comments” box.

  15. I’m happy that comments were opened up. As always, a thoughtful piece by our wise man. Living in the hometown of Freedom From Religion I see the zealotry of atheists. I actually try and think what it would be like to be an atheist in the US. There are a few countries where it might be less offensive to atheists. But, I can think of no country that tries so hard to find that balance as does this country.

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