Rules Are for Schmucks: With Friends Like Justice Kagan, Who Needs Enemies?

“There they go again,” many liberals are moaning about the Supreme Court’s decision in Greece v. Galloway. “Another 5-4 decision where the conservative majority endorses the government cramming religion down our throats. If only one of those five would show the good grace to retire or die so Obama would have a chance to appoint someone who would start swinging the 5-4 decisions our way.”

By my count, though, the decision wasn’t 5-4. It was actually 9-0. Every single justice, including the authors of both dissents, is heartily in favor of allowing federal, state, and local government bodies to launch their meetings with a prayer. The only problem the dissenters have is that the prayers in this case weren’t diverse (or bland) enough.

Justice Kagan, who wrote the principal dissent, was as clear as she could be. She stirringly pronounced that government must “treat every citizen, of whatever religion, as an equal participant in her government.” Unless one of the most precise legal scholars of our day misspoke, citizens of no religion, like me, deserve no protection.

Kagan says she would be OK with having exclusively Christian ministers doing the praying, so long as their prayers were not too specific:

“If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. … Such prayers show that ‘those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith.’”

Dear Justice Kagan: Thanks for writing me out. I do not have a respect for a higher providence, or a “belief in the importance of religious faith.” So it seems in your view I count for nothing.

Humanism (or atheism, or agnosticism, or nontheism) is not a “religion” but it is definitely a “creed”—a belief that there is no spirit in the sky cataloguing our prayers, we’re on our own, and had better face it like grown-ups. It’s an important, internally consistent belief system, with a lot more plausible evidence supporting it than, say, the Mormons belief in the planet Kolob, or the Jews belief that it’s a sin to eat shrimp.

Justice Kagan insists that to be valid, government prayer must “exercise special care to ensure that the prayers offered are inclusive—that they respect each and every member of the community as an equal citizen.” But this is a logical impossibility. It may be possible to devise a prayer so generic that it doesn’t offend any deity-believers—“God(s), help us!”—but the very fact that something is a “prayer” necessarily implies that there is somebody up there listening and caring, which does not at all “respect” the strongly-held beliefs of people like me.

Kagan also says she would have no problem if more religious variety had been offered. “When one month a clergy member refers to Jesus, and the next to Allah or Jehovah … the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.” Yet Kagan’s own excellent example of the dangers of mixing religion with government refutes this:

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.

Yet somehow, in Kagan’s dream world, the fact that a Muslim preacher had delivered an invocation six months or a year earlier would put this lady’s mind at ease. Can she really believe that?

There is a simple solution. Keep religion out of government. Let any council member recite any incantations he wants to on his own time before the meeting starts, but when it’s time for business it’s time for business. Which is exactly the point of view Kagan and the other eight justices flatly reject:

None of this means that Greece’s town hall must be religion- or prayer-free. “[W]e are a religious people,” Marsh observed, 463 U. S., at 792, and prayer draws some warrant from tradition in a town hall, as well as in Congress or a state legislature.

I am not a religious person, and I resent being excluded from Kagan’s “we.” Nor am I alone; an NBC/Wall Street Journal poll in March showed that 21 percent of Americans call religion “not that important” in their lives, up from 16 percent in 1999. There are more of us than there are members of any single religious denomination other than Roman Catholic. Does Kagan not know this? Of course she does. She just doesn’t care, because being unabashedly nonreligious is politically incorrect. That’s why nearly 120 members of Congress, 18 state attorneys general, and the Obama administration all filed supporting legal briefs backing government prayer.

Quoting Paul Tillich, Kagan describes these meeting-opening pleas to the great spirit in the sky as:

statements of profound belief and deep meaning, subscribed to by many, denied by some. They “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.” If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different—and, I think, poorer—place to live.

So Kagan is all about forcing me, and rest of the 21 percent non-religious minority, to acquiesce in government prayer because it’s good for us.

I get it that Supreme Court litigation is all a big game. If you try to go too far in claiming that prior decided cases were just wrong (for example, the Marsh case allowing opening prayers in the Nebraska legislature), then you will have a harder time getting to five votes. So you play the game by straining your legal skills to find tiny distinctions, reasons why the old case might still be valid in its particular circumstances, but the circumstances before us now are different, and warrant a different result. Kagan, for example, devotes great energy to which way the prayer-deliverer is facing as he speaks. In the Nebraska legislature, where she thinks prayer is ok, the preacher is facing the legislators; in the Greece town hall, where she thinks prayer (at least this kind of prayer) is not ok, the preacher is facing the audience. (I’m not making this up.) This is why so many people despise lawyers—and are justified in doing so.

Imagine how refreshing it would be to have at least one justice out of nine say, “Religion has no place in government meetings, period. Next case.”

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  • I wish that someone in some town would pass out Rosary beads and lead the city council in a Hail Mary. It might have more impact that asking them to face Mecca to pray because it’s Christian, yet a majority wouldn’t approve of it.

    • Hanrod

      Rather like that idea! Perhaps we could incite competetion between them in the invocations, and bring on, once again, the old Catholic-Protestant wars, upon which our people might just see the “evil” of sectarian religious beliefs expressed in the public sphere.

  • Diggitt

    It beats me how and why Obama thought that Kagan’s a liberal.

  • Martin Brannan

    This really is an unfair assessment. Remember that both the Plaintiffs and the Defendant said that some form of generic invocation appealing to a higher power or universalistic god would be OK. The Supreme Court wasn’t actually asked whether or not prayer could be given, neither side sought that result. The Supreme Court was asked, after both parties agreed that some prayer was ok, to fashion what type of prayer that may be.

    The better case is the Fourteenth Amendment case wherein the complaint is that any prayer, however nonsectarian, alienates every person not aligned with the person giving the invocation. Although Thomas and Scalia answered that unasked question by saying that only Congress, not states, counties/parishes and municipalities, is forbidden from establishing religion, thereby inviting states, counties/parishes and municipalities to do just that, the remaining seven judges never weighed in on that question.

    Courts deliberately decline to address issues that aren’t before them. Kagan, et al., might have a completely take on prayer when the question is not one of establishment but one of equal protection.

    • Luis Granados

      I quote verbatim from Kagan’s ringing endorsement of the Marsh precedent approving prayer at government meetings and of her praise for the fundamental policy of public prayer. This is an “unfair assessment”??

      • Martin Brannan

        Yes. It is. You can’t expect the Court to overturn a precedent when no one asks it to. Both parties, idiotically IMO, accepted Marsh as good law and sought to distinguish the facts of this case from the Marsh case. In essence, what the plaintiffs said was, “yeah, we get that prayer before a meeting of the state legislature and the Congress is skippy by us, but City Hall meetings are different.” What should the Court do when no one is asking them to overturn Marsh? Overturn it of its own accord without allowing the parties to brief its overturn? That would be judicial activism at its ugliest.

        This is exactly the outcome I predicted in an email to Maggie Ardiente on November 7, 2013. Courts never do what no party asks them to do. If you are asleep at the wheel and fail to ask for what you really want, that’s your fault and you waive the issue that you could, and should have, raised.

        Bringing this case as an establishment case was never the right call. Why? Because there were prayers in state legislatures and the Congress for more than two hundred years and yet there has been no federal or state religion established. People remain free to believe in whatever gods they choose and to believe in no gods at all. In those hundreds of years, religious beliefs have, in fact, gotten more diverse and non-religious people are the fastest growing sector of the public. However repugnant they may be to you or me, prayers before legislative sessions have absolutely not resulted in the establishment of a state or federal religion.

        As Thomas and Scalia point out, correctly, the Establishment Clause was not intended by the founders to apply to anyone but Congress. Other governments, state and local, were free to establish religion without federal constitutional hinderance. They are also correct in pointing out that, unlike assembly and redress, the First Amendment creates no personal rights but rather limits the authority of Congress. This further weakens the argument that the Establishment Clause was meant to create individual rights that are susceptible to judicial intervention.

        The fact is that the States were free to establish an official religion up until the adoption of the post-Civil War Fourteenth Amendment which, although designed to ensure equal citizenship to former slaves, was written broadly enough to provide equal protection of the laws as well as equal privileges and immunities to all citizens. It is through the Fourteenth Amendment that the argument that everyone seems to be making but the plaintiffs needs to be made. Forcing non-believers to accept the reverent prayers to whatever gods denies non-believers the equal privilege afforded by believers of the divine. Permitting non-sectarian prayer (is there such a thing? Praying to one god is sectarian for polytheists and praying to a body of gods is sectarian for monotheists) isn’t a remedy for the nonbeliever and neither is permitting secular invocation (is there such a thing? How does one invoke nothing?) to the believer. The only correct answer under the Fourteenth Amendment is to eliminate prayer all together.

        Making the Fourteenth Amendment argument could easily shift alliances and convince the dissenters and one or more of the concurring Justices that, while invocations do not establish an official state religion, they do violate the rights of atheists, and others, to equal protection and/or equal privilege.

        • RelRay

          Excellent analysis. Thank you Martin