The Bizarre Outcome of SCOTUS’s Decision on Legislative Prayers

churchWhen government entangles itself with religion in any manner, it ultimately leads to strange outcomes. During the period prior to the West’s embrace of religious freedom, governments involved themselves in all manner of religious matters. The Supreme Court’s decision Monday to allow legislatures to have Christian prayers and paid chaplains will regrettably throw governments back into the religion business.

The court’s decision in Town of Greece v. Galloway overturned an appeals court ruling that held that the city government’s practice of holding regular “sectarian” (i.e. Christian) prayers “amounted to official city endorsement of that faith.” The court’s majority opinion held that only “coercive” prayers were prohibited under the First Amendment, overturning a judicial precedent prohibiting only prayers that “endorsed” certain sects.

Whether a prayer “endorses” a certain sect seems to me totally irrelevant to the First Amendment. Any prayer in a legislative body constitutes an “endorsement”—i.e. a governmental advertisement for—prayer, for God, and for religion of some type, so I was happy to see the precedent fall. But its replacement is even stranger still. What exactly is a “coercive” prayer? On this point, the majority split between right-wingers Thomas and Scalia and moderates Kennedy, Alito, and Roberts.

By striking down the appeals court ruling, we know what is apparently not “coercive”: occasional prayers to a Christian God by a Christian chaplain that ask the audience to acknowledge “the saving sacrifice of Jesus” with an “amen” and invite them to bring Him into their “hearts.” But finding an abstract principle to permit these actions was more difficult for the court to agree upon.

Thomas and Scalia believe that it is “actual legal coercion that counts—not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.” That seems quite reasonable to me, as far as a definition of coercive goes. But the “moderate” majority feels differently. They set up a complex “coercion” test, which forces courts to delve into areas that they have no business considering.

The failure of the court to affirm the separation of church and state will force courts to decide whether prayers “denigrate” other sects, “proselytize,” “attempt lengthy disquisition on religious dogma,” or “comport with the tradition of solemn and respectful prayer.” Moreover, courts must decide that the legislature hosted a series or “pattern” of impermissible prayers for it to constitute “coercion.”

“Courts remain free to review,” Kennedy writes, “the pattern of prayers over time to determine” what constitutes denigration, proselytizing, “religious dogma,” “lengthy,” and what is “solemn and respectful” prayer. This outcome is exactly the sort of absurdity that the Jeffersonian wall was meant to avoid.

Courts will spend the next decade parsing each word of prayers (or rather a pattern of prayers) that never should have been conceived, making absurd religious pronouncements about how “coercive” hearing certain special words are. Is addressing “our risen Lord” a promotion of religious doctrine? Sure, does it “coerce” the hearer? Maybe, but only if part of a pattern of “risen Lords”?

Even the religious right should wonder whether or not this decision really constitutes a “victory” for them. Do they really want courts reviewing the content of prayers, deciding which parts may be “coercive” (in any sense)? Do they really want courts deciding if a Christian prayer constitutes “denigration” of other sects, which some courts surely will in time? I suppose so, but only if their side wins.

Sadly, there was no will even among liberal justices for affirming a strict wall of separation between religion and government. Justice Breyer’s dissent argues that “reasonable efforts to include minority faiths” would have justified the practice. Meanwhile, Justice Kagan would only reject “government-sponsored worship that divides [people] along religious lines” [my emphasis].

The conservative justices are right about one point. Libertarians can’t long for a past free from legislative prayer or governmental endorsement of religion. But the hypocrisy and inconsistency of the past is only evidence of just that. It should not become an excuse for more of the same. Government should get out of the religion industry entirely, once and for all.

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Edward Coke

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