“Sympathy For The Devil Worshipers”: SCOTUS Struggles Not To Become De Facto Prayer Editors
It’s easy enough to be in favor of a “nonsectarian” prayer before a legislative session — some invocation of a higher power that theoretically doesn’t exclude anyone (besides atheists, that is) — but what exactly does such a prayer sound like?
That was Justice Samuel Alito’s question during oral arguments at the Supreme Court Wednesday morning in the case of Town of Greece v. Galloway, and it got to the heart of the court’s basic discomfort with cases asking it to decide whether specific government-sponsored prayers cross the constitutional line and “establish” religion in violation of the First Amendment.
In Greece, a town of just under 100,000 in western New York, town officials invite local clergy to offer a prayer before monthly town board meetings. The prayers may technically be given by anyone, but for nine years they were exclusively Christian, many using language such as “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.” Two residents sued the town under the First Amendment.
Standing before the court, the residents’ lawyer, Douglas Laycock, suggested that a nonsectarian prayer would be satisfactory. Justice Alito wasn’t so sure.
“How could you do it?” Justice Alito asked. “Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus … Wiccans, Baha’i.”
“And atheists,” Justice Antonin Scalia added. “Throw in atheists, too.”
Mr. Laycock reminded the justices that atheists were already out of luck based on the court’s prior decisions. Then, riffling through his documents, he suggested, “The prayers to the Almighty, prayers to the Creator.”
“To ‘the Almighty,’” Justice Alito said skeptically. “So if — if a particular religion believes in more than one god, that’s acceptable to them?”
Justice Scalia, often impatient in religion cases, couldn’t resist. “What about devil worshipers?”
Over the laughter of the courtroom, Mr. Laycock said meekly, “Well, if devil worshipers believe the devil is the almighty, they might be okay. But they’re probably out.”
And so it went, the justices trying in vain to determine what sort of prayer, if any, would be sufficiently nonsectarian, and who should be responsible for making that determination. None of them seemed to relish the idea of playing at prayer editor.
As the argument progressed it was increasingly difficult to discern any grounds on which to justify legislative prayer other than the fact that it’s something we’ve always done — which was the basis for the court’s ruling upholding such a prayer in the Nebraska legislature in 1983, when it last considered the question.
Lawyers for the town leaned heavily on that ruling, but several of the justices seemed uneasy with its rationale. “The history doesn’t make it clear that a particular practice is okay going on in the future,” Chief Justice John Roberts said. “We’re not going to go back and take the cross out of every city seal that’s been there since, you know, 1800. But it doesn’t mean that it would be okay to adopt a seal today that would have a cross in it, does it?”
The question answered itself, and was a reminder of how much the country’s religious makeup has changed over the past two centuries. Justice Alito emphasized the point in returning to his earlier concern about workability. While the U.S. may once have been “98-percent-plus Protestant,” he said, today “there are all sorts of other adherents to all sorts of other religions. And they all should be treated equally, and — but I don’t — I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups.”
Mr. Laycock agreed, and reached the inevitable conclusion to that argument. “We cannot treat everybody, literally everybody, equally without eliminating prayer altogether.”
But there is an alternative to “eliminating” prayer — a moment of silence, which is what the town of Greece did for years without complaint. It allows everyone to pray exactly as they wish; it even makes room for the atheists and devil worshipers.
For some — including several members of the current court — a “silence only” policy is surely a step too far. But it would be a reasonable compromise in a pluralistic society, and for justices who don’t want to become de facto prayer editors, it’s a bright line on an otherwise blurry canvas of conflicting tests and standards that have rarely satisfied anyone.
By: Jesse Wegman, Editors Blog, The New York Times, November 6, 2013
“A Shameful Waste Of Taxpayer Money”: North Carolina Lawmakers Introduce Law To Establish An Official State Religion
What is it about GOP state legislators that drives them to create laws that have no hope of surviving constitutional scrutiny yet always succeed in running up millions in legal fees to be paid by taxpayers on the way to failure?
And why is it that these same lawmakers are always among the ones crying foul when taxpayer money is spent on things such as healthcare for children or food stamps for the hungry but gladly blow big money on useless challenges to the United States Constitution?
Apparently, helping kids and seniors get needed healthcare is a shameful waste of taxpayer money while paying lawyers big money to pursue hopeless cases that only serve to further political careers is both noble and enlightening.
Over the past few years, red state after red state has taken to passing anti-abortion laws designed to subvert the Supreme Court’s judgment in Roe v. Wade—despite the reality that these state laws, on their face, clearly violate the law.
Recently, many have watched in amazement as Mississippi legislators filed a piece of legislation that would establish a state committee empowered to decide which federal laws the state will agree to follow and which ones they will chose to ignore. According to these Mississippi state lawmakers, they possess the power to ignore any federal law they wish as a result of their state sovereignty—despite a United States Constitution that clearly says otherwise.
But now, in what can only be seen as the coup de grâce in a Republican rebellion against the U.S. Constitution which is sweeping the nation, legislators in North Carolina are preparing to take on one of the most fundamental notions upon which our nation was founded—the freedom of religion and the importance of that pesky wall that separates church and state.
Meet North Carolina Representatives Carl Ford (R-China Grove) and Harry Warren (R-Salisbury), the primary sponsors of a bill introduced into the state’s General Assembly that would clear the way for the state to adopt an official, state religion.
The proposed law, introduced earlier this week, states that the Establishment Clause in the First Amendment—which prohibits Congress from passing laws respecting the establishment of religion or prohibiting the free exercise of religion in America—simply does not apply to the states. The bill goes on to proclaim the sovereignty of the states in this matter while proclaiming that each state is free to make its own laws respecting an establishment of an official religion and that such an establishment cannot be blocked by either Congress or the judiciary.
If you are of the mind that these North Carolina lawmakers have it right, allow me to introduce you to Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court case that established the three-pronged test—called “The Lemon Test”— for determining when a state has run afoul of the First Amendment’s Establishment Clause:
- The law or state policy must have been adopted with a neutral or non-religious purpose.
- The principle or primary effect must be one that neither advances nor inhibits religion.
- The statute or policy must not result in an “excessive entanglement” of government with religion.
Clearly, there is no way that a state can create an ‘official’ religion without going very wrong when it comes to meeting The Lemon Test as established by the highest court in the land.
We should not be overly surprised that such an effort to ‘break’ the Constitution—not to mention the will of the Founders—should come from the state of North Carolina. This is the same state that continues to have a provision in its State Constitution requiring that nobody may run for a public office in the state unless that candidate affirmatively states his or her belief in God. Never mind that such a requirement is, again, in direct contradiction to the U. S. Constitution’s prohibition against religion as a prerequisite for serving in public office or the many writings of the Founders expressing their strong feelings against religion as a disqualifying factor for holding office.
And never mind that North Carolina has never removed this requirement from their Constitution despite the Supreme Court’s ruling in Torcaso v. Watkins, 367 U.S. 488 (1961) which held that such a law violate the First and Fourteenth Amendments to the United States Constitution. It was in the Torcaso case that the Court wrote—
“We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.”
So, is this latest effort to subvert a fundamental premise upon which this nation was founded simply the work of a few misguided public officials in North Carolina looking to score some points with the electorate?
Sadly, it is not.
Joining in the fun, as a co-sponsor of the bill allowing North Carolina to establish an official state religion, is one of the most powerful members of the North Carolina General Assembly, GOP Majority Leader Edgar Starnes. Apparently, expecting a leader in so important a role to show some fealty to the law and the legal underpinnings of the nation is asking a bit too much when compared to the opportunity provided that elected official to score a few political points.
I would call these ‘cheap’ political points but there is nothing cheap about the bills the state will rack up as they work to move their faulty legislation up to the United States Supreme Court in order to make their point.
For me, the overriding question presented by this latest effort to subvert the Constitution is just how long it will take for those who self-identify as strict constitutionalist—typically people who also identify as Republicans—to understand that their taxpayer dollars are being squandered by the millions by their elected officials.
When public servants have come to the point where they are desirous of turning their backs on citizens of their state whom may not subscribe to the same religious beliefs of those elected officials, we are on the road to an America that the Founders would neither recognize nor approve.
By: Rick Ungar, Op-Ed Contributor, Forbes, April 3, 2013
Church vs State: Election 2012’s Great Religious Divide
We have embarked on yet another presidential campaign in which religion will play an important role without any agreement over what the ground rules for that engagement should be.
If you think we’re talking past each other on jobs and budgets, consider the religious divide. One side says “separation of church and state” while the other speaks of “religion’s legitimate role in the public square.” Each camp then sees the question as closed and can get quite self-righteous in avoiding the other’s claims.
Anyone who enters this terrain should do so with fear and trembling. But a few things ought to be clear, and let’s start with this: The Mormon faith of Mitt Romney or Jon Huntsman should not be an issue in this campaign. Period.
In the United States, we have no religious tests for office. It’s true that this constitutional provision does not prevent a voter from casting a ballot on any basis he or she wishes to use. Nonetheless, it’s the right assumption for citizens in a pluralistic democracy.
All Americans ought to empathize with religious minorities because each of us is part of one. If Mormonism can be held against Romney and Huntsman, then everyone else’s tradition — and, for nonbelievers, their lack of religious affiliation — can be held against them, too. We have gone down this road before. Recall the ugly controversy over Catholicism when Al Smith and John F. Kennedy sought the presidency. We shouldn’t want to repeat the experiences of 1928 or 1960.
But to say this is not the same as saying that religion should be excluded from politics. The test should be: To what extent would a candidate’s religious views affect what he or she might do in office?
Many beliefs rooted in a tradition (the Virgin Birth, how an individual keeps kosher laws, precisely how someone conceives the afterlife) are not relevant in any direct way to how a candidate would govern. In the case of Mormonism, those who disagree with its religious tenets are free to do so but they should argue about them outside the confines of a political campaign.
Yet there are many questions — and not just concerning abortion — on which the ethical and moral commitments that arise from faith would have a direct impact on what candidates might do in office. Those should be argued about. My own views on poverty, equality and social justice, for example, have been strongly influenced by Catholic social thought, the Old Testament prophets and the civil rights preachers. Religious conservatives have arrived at convictions quite different in many cases from mine, after reflection on their own faith and their traditions.
Neither they nor I have a right to use the state to impose such views on religious grounds. That’s the essence of the pluralist bargain. But we can make a religious case for them if we wish.
This leads to a conclusion that the philosopher Jean Bethke Elshtain reached some years ago: “Separation of church and state is one thing. Separation of religion and politics is something else altogether. Religion and politics flow back and forth in American civil society all the time — always have, always will.”
That is entirely true. It’s also not as simple as it sounds. For if religious people fairly claim that faith has a legitimate place in public life, they must accept that the public (including journalists) is fully justified in probing how that faith might influence what they would do with political power.
Religious people cannot have it both ways: to assert that their faith really matters to their public engagement, and then to insist, when it’s convenient, that religion is a matter about which no one has a right to ask questions. Voters especially have a right to know how a candidate’s philosophical leanings shape his or her attitudes toward the religious freedom of unbelievers as well as believers.
And here’s the hardest part: We all have to ask ourselves whether what we claim to be hearing as the voice of faith (or of God) may in fact be nothing more than the voice of our ideology or political party. We should also ask whether candidates are merely exploiting religion to rally some part of the electorate to their side. The difficulty of answering both questions — given the human genius for rationalization — might encourage a certain humility that comes hard to most of us, and perhaps, above all, to people who write opinion columns.
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