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I spent several hours Tuesday trying to work up a contrarian Bleader post that would give the Supreme Court two cheers for its 5-4 decision okaying the invocations given by local ministers before monthly town board meetings in Greece, New York. If these ministers are almost all Christian, so be it, said the court’s majority. If they address a specifically Christian God, even invoking Christ himself, so be it.
After growing up a "generic Christian" who bounced from church to church (the caliber of its youth softball team had a lot more to do with my choices than its liturgy did), I find myself, when it comes to people of faith, preferring those who take faith too seriously to settle for a "generic God." This is the God that the plaintiffs in Greece v. Galloway wanted the clergy to limit themselves to in their invocations.
I grant you that a generic God sounds like just the right kind of God to invoke at a moment the majority opinion of Justice Anthony Kennedy repeatedly calls "ceremonial"—the ritual incantation that encourages the councilmen of Greece to screw on solemn faces before getting down to the people’s business. But why should this ritual be tolerable only if it’s empty? When offered a public moment to have a word with God, what clergyman worth his salt would bore Him with boilerplate? Plaintiff Susan Galloway, who’s Jewish, protested the invocations, telling the town board she found them "intolerable." But though I assume she’s serious about her own faith, I don’t believe her. As there’s no prayer I can’t tune out after five seconds, no sermon I don’t drift away from after three minutes, I find it hard to believe Galloway suffered more than she could bear.
"Intolerable" is hyperbole useful mainly to litigators, and litigation is, I fear, often a gleeful substitute for common sense. The Supreme Court majority, I think, told themselves that common sense should prevail, and that common sense meant recognizing no great harm was actually being done in Greece and local custom should not be uprooted to please a handful of gadflies.
So that was what I set out to say in my post. But it didn’t write itself, and eventually I gave up. The problem came from a mistake that I’m confident many Americans with strong opinions about Greece v. Galloway were too smart to make. I read the opinions—Kennedy’s and the dissent of Justice Elena Kagan. And, inconveniently, Kagan’s is more persuasive. Kennedy lets common sense waft him along. Kagan thinks harder.
Where she’s most effective, I think, is in embracing the same precedent that Kennedy holds most dear and pointing out how much it actually differs from the matter at hand. Marsh v. Chambers was a 1983 case in which the Supreme Court ruled that the Nebraska legislature could go on beginning each session with a chaplain’s prayer. Kagan says she agrees with Marsh. But, she goes on, the chaplain in Nebraska invited clergy of other faiths to give the invocation, he stopped mentioning Christ when a legislator objected, and, most importantly, he offered the invocation only to the legislators in the chamber. If members of the public were present at all, they were upstairs in the visitors’ gallery and none of the chaplain's concern.
Greece is different. The public is present, not just to witness but to participate. Every town board meeting "provides an opportunity (called a Public Forum) for citizens to address local issues and ask for improved services or new policies. . . . The setting is intimate. . . . As the first order of business, the Town Supervisor introduces a local Christian clergy member—denominated the chaplain of the month—to lead the assembled persons in prayer. The pastor steps up to a lectern (emblazoned with the Town’s seal) at the front of the dais, and with his back to the Town officials, he faces the citizens present. He asks them all to stand and to 'pray as we begin this evening’s town meeting.' (He does not suggest that anyone should feel free not to participate.) . . . After the pastor concludes, Town officials behind him make the sign of the cross, as do some members of the audience, and everyone says 'Amen.'"
Kagan goes on:
Let’s say that a Muslim citizen of Greece goes before the Board to share her views on policy or request some permit. Maybe she wants the Board to put up a traffic light at a dangerous intersection; or maybe she needs a zoning variance to build an addition on her home. But just before she gets to say her piece, a minister deputized by the Town asks her to pray "in the name of God’s only son Jesus Christ." She must think—it is hardly paranoia, but only the truth—that Christian worship has become entwined with local governance. And now she faces a choice—to pray alongside the majority as one of that group or somehow to register her deeply felt difference. She is a strong person, but that is no easy call—especially given that the room is small and her every action (or inaction) will be noticed. She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ’s divinity, any more than many of her neighbors would want to deny that tenet. So assume she declines to participate with the others in the first act of the meeting—or even, as the majority proposes, that she stands up and leaves the room altogether. At the least, she becomes a different kind of citizen, one who will not join in the religious practice that the Town Board has chosen as reflecting its own and the community’s most cherished beliefs. And she thus stands at a remove, based solely on religion, from her fellow citizens and her elected representatives.
"What the circumstances here demand is the recognition that we are a pluralistic people too," writes Kagan, this recognition being something the town board could easily have provided by calling on a wider range of clergy, and by asking them to face the town board instead of the public and limit themselves to concepts that unite people of faith rather than divide them (call these generic if you must). This, to me, is a stronger claim on common sense than Kennedy could make, even if it’s drearily liberal. It’s also a stronger endorsement of religious tolerance and liberty.