Curating most anything is very cool these days, I think. So why were so many of our Supreme Courters seemingly so afraid of curating our public prayers? Don’t we pay them the big bucks to settle tough issues like this?
To answer–and to get a bit serious–a little history first. Thirty years ago, the Court last undertook to rule on legislative prayer, in a case out of Nebraska, which had paid a chaplain (same denomination, Presbyterian, for sixteen years in a row!) out of public funds. Chief Justice Burger, platitudinous and conformist as ever, delivered the 6-3 majority opinion, which was heavy on legislative prayer’s “unique history,” its “deeply embedded” status and its supposed easy “coexist[ence] with the principles of disestablishment and religious freedom” (Marsh v. Chambers, 1983). Justice William Brennan‘s dissent in the Marsh case acknowledged that the “limited rationale” of the decision “should pose little threat to the overall fate of the Establishment Clause,” and averred that 20 years earlier, in a concurring opinion striking down official prayer in public schools, he himself had come “very close to endorsing essentially the result reached…today.” Brennan then wrote: “I was wrong then and…the Court is wrong today.” Not a common sight in Supreme Court opinions then or now!
Brennan’s dissent pointed out that the Burger majority opinion “makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause….it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.” What should be obvious, according to Brennan, is “that, 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.” Brennan then set off on a lengthy explanation of the principles and purposes of “separation” and “neutrality” implicit in the Clause: guaranteeing the individual right to conscience, keeping the state from interfering in the autonomy of religious life, preventing the trivialization and degradation of religion which occurs when it gets too closely attached to governmental bodies, and finally keeping important and sensitive religious issues from becoming political battlegrounds. Justice Brennan went on to detail how “the imperatives of separation and neutrality are not limited to the relationship of government to religious institutions or denominations, but extend as well to the relationship of government to religious beliefs and practices.” He refuted the ahistorical talking point that his view of the Establishment Clause is “a recent concoction of an overreaching judiciary,” citing none other than James Madison (his post-presidential “Detached Memoranda”). Brennan concluded his dissent by quoting de Toqueville on the strikingly beneficial mutuality of the spirits of religion and freedom in the United States of the 1830s, which Toqueville’s informants agreed was due to the complete separation of church and state. “More recent history,” wrote Brennan, “has only confirmed de Toqueville’s observations. If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction. But it would also, I am convinced, have invigorated both the ‘spirit of religion’ and the ‘spirit of freedom.’ I respectfully dissent.”
That was thirty years ago. The oral argument in Town of Greece v. Galloway appears to me to signal an outcome not too different from Marsh. Those who seemed inclined to uphold the western New York town’s practice since 1999 of beginning town board meetings with prayer justified themselves by worrying about censoring speech (Kennedy, whose fetish for applying First Amendment absolutism inappropriately is getting on my last nerve), by pooh-poohing the element of coercion (Scalia and perhaps Alito), or by worrying about overturning a longstanding practice (though sectarian prayer just started in 1999–the previous town supervisor was mindful enough to begin with a moment of silence).
Justice Sotomayor got at the heart of the flim-flammery of pretending that Hindus, Muslims, Jews, and practically everybody (except atheists–though in 2013 American religious “nones” appear to outnumber all non-Christians) were all welcome to join the festivities when she got the town’s lawyer to admit that Christian clergy led the prayer on average 11 out of 12 months each year even after the court challenge began! According to the 2nd Circuit Appeals Court ruling, there was an outbreak of pluralism in 2008, with four non-Christian prayers out of twelve, and then a reversion to the pre-lawsuit all-Christian norm for at least a year and a half (Galloway v. town of Greece, 681 F.3d 20).
Regarding the curating of curates’ and others’ public prayers, I now propose a moment (or a day) of silence and mindfulness–which is only to say I hope to have more to say in a little while.