WSJ Should Re-Read Kagan Dissent In Public Prayer Case

Blog ››› ››› MEAGAN HATCHER-MAYS

The Wall Street Journal mischaracterized Supreme Court Justice Elena Kagan's dissent in the Greece, New York, public prayer case, accusing Kagan and the other liberal justices who dissented of "working hard to push religion to the sidelines of American public life." In fact, Kagan made clear in her dissent that the town should lose the case because it failed to adhere to religious diversity; as she noted, the town "never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions."  

On May 5, the Supreme Court ruled in Town of Greece v. Galloway that the prayer given before town meetings did not violate the Establishment Clause of the First Amendment. Kagan (joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor) dissented, arguing that based on the facts of the case, a constitutional line had clearly been crossed -- the town had invited predominantly Christian clergy to the meetings to give explicitly Christian invocations.

As Kagan wrote in her dissent, "the Town of Greece should lose this case" because "the invocations given -- directly to those citizens -- were predominantly sectarian in content." The dissent went on to explain that the prayers before the town meetings in Greece went beyond what the majority opinion called "a benign acknowledgment of religion's role in society." In the dissent's view, it was not the prayer per se that crossed the constitutional line, but the fact that the prayers "repeatedly invoked a single religion's beliefs." Prayers included a discussion of "the saving sacrifice of Jesus Christ on the cross" and "the plan of redemption that is fulfilled in Jesus Christ."

But the facts didn't seem to matter to the WSJ editorial board, which argued that Kagan's dissent was tantamount to "limit[ing] God in the public square."

From the May 5 editorial:

The High Court had upheld legislative prayer as recently as 1983 in Marsh v. Chambers, so this case was really about whether the Justices were going to restrict that precedent and further limit God in the public square. That's precisely what the four liberal Justices would have done, led by Elena Kagan, who argued in her dissent that even allowing a rabbi or cleric to make a sectarian reference is divisive and constitutes a state endorsement of that religion. Joined by the three other liberals, she said any prayer must be generic and entirely nonsectarian.

[...]

The town of Greece used mostly Christian prayers because its citizens are predominantly Christian. Yet when rabbis and clerics of other faiths asked to give the prayer, they were welcome. Even a Wiccan priestess was allowed to issue what we suppose was an anti-prayer. Council members and visitors were under no obligation to pray along and there was no evidence of punishment or even disapproval for anyone who didn't.

[...]

While the decision is welcome, the close vote shows that public prayer hangs by a single vote at the High Court. The liberal Justices were more than happy to modify a precedent to further restrict even the most passing public reference to a sectarian God. Religion is in no danger of imposing itself on Americans, but a dominant secular legal culture is still working hard to push religion to the sidelines of American public life.

The WSJ's characterization of Kagan's dissent in Town of Greece missed her point entirely.

Kagan specifically noted that she agreed "with the Court's decision in Marsh v. Chambers, upholding the Nebraska Legislature's tradition of beginning each session with a chaplain's prayer." She was actually quite clear that town meetings like those held in Greece "need not become a religion-free zone." What she and the other dissenters objected to were the specific facts of this case, in which the town almost exclusively favored Christian prayers over all others. The WSJ is correct that "rabbis and clerics of other faiths" were eventually invited to the town meetings to give the prayer, but it ignored the fact that the town of Greece sought this religious diversity only after the plaintiffs in Town of Greece filed their lawsuit.

From Kagan's dissent:                          

I respectfully dissent from the Court's opinion because I think the Town of Greece's prayer practices violate that norm of religious equality -- the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian. I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the Court's decision in Marsh v. Chambers, upholding the Nebraska Legislature's tradition of beginning each session with a chaplain's prayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece's town meetings involve participation by ordinary citizens, and the invocations given -- directly to those citizens -- were predominantly sectarian in content. Still more, Greece's Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share in her government.

So the WSJ's claim that the liberal justices were guilty of attempting to "further limit God in the public square" ignored the facts specific to the Town of Greece case -- and it did not address how the majority opinion could do just that going forward. Thanks to this decision, the town is now welcome to invite ministers to deliver overtly Christian prayers, "so long as nobody is being damned or converted," as Slate's legal expert Dahlia Lithwick put it. 

The question now isn't whether God is allowed in the public square, but rather, which God is invited? 

Photo via Flickr/Fortune Live Media under Creative Commons License.
Posted In
Religion, Justice & Civil Liberties
Show/Publication
The Wall Street Journal
Stories/Interests
Courts Matter
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.