There is a sense in which the Supreme Court’s latest church-state decision — on allowing civic prayer to open meetings of government bodies — is more important for what the court didn’t do than for what it did.
The 5-4 ruling May 5 didn’t say no to opening meetings of a town council in upstate New York with prayer by an invited member of the clergy. Had the Supreme Court done that, it would have been a major victory for secularism in its campaign to drive religion out of the public square in the United States.
As it is, in saying yes to civic prayer the court reaffirmed a 1983 decision declaring the constitutional propriety of a practice common in American government at all levels — including presidential inaugurations and sessions of Congress and the Supreme Court itself.
Ralph Reed, chairman of the Faith and Freedom Coalition, called prayer at civic events “a long and cherished tradition ... woven into the fabric of American society.” But Washington Post columnist Richard Cohen, invoking the specter of anti-Semitism, said “the invocation of religion can be seen as a hostile act.” Apparently Cohen didn’t notice that barring prayer can also be seen that way.
The significance of the Supreme Court’s decision is best understood in relation to the continuing struggle between secularism and religion in America. Just last month, the Supreme Court refused to hear an appeal by an Albuquerque, New Mexico, husband and wife wedding photography team who were found guilty of violating the state’s anti-discrimination law for refusing to cover a same-sex wedding ceremony.
Facts of the case
The dispute (Greece v. Galloway) arose in Greece, New York, a town of 100,000 near Rochester, where for 15 years prayers offered by invited members of the clergy have opened town council meetings. Two local women found this practice offensive and went to court hoping to end it. A panel of the 2nd U.S. Circuit Court of Appeals agreed with them.
The Supreme Court did not. The outcome instead was a familiar conservative-liberal divide, with five members — Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito — taking the town’s side and four opposed — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Kennedy wrote the majority opinion, with Kagan writing for the minority.
Kennedy said “ceremonial prayer” was a long tradition in America corresponding to many citizens’ beliefs “far beyond the authority of government to alter or define.” The dissenters also accepted prayer in principle, but objected to the specifically Christian language of some of the prayers in this case. But for government to tell the clergy how they could and couldn’t pray, Kennedy said, would itself be unacceptable state involvement in religious affairs.
The outcome in the Greece case offers few if any hints to how the Supreme Court will decide another, potentially more important church-state case involving government pressure on individuals and groups to conform with laws that violate their consciences.
A consolidation of two separate challenges (Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius), that case revolves around objections by the evangelical owners of a crafts store chain and a Mennonite family that owns a cabinet-making company to provisions of the Affordable Care Act, popularly known as Obamacare, requiring them to provide employees with health insurance coverage that includes abortifacients.
Crucial to the dispute is how to interpret provisions of a 1993 law called the Religious Freedom Restoration Act forbidding the government to impose a “substantial burden” on the constitutional right of religious free exercise unless doing so is necessary to realize some “compelling government interest.”
The Supreme Court heard oral arguments in the Hobby Lobby and Conestoga case in March. The decision is expected before its term ends in late June.
Tests of freedom
Beyond Hobby Lobby and Conestoga, both of them privately owned, for-profit companies, lie a large number of cases working their way toward the Supreme Court that involve church-related institutions and groups, many Catholic, with conscience-based objections to Obamacare’s requirement of coverage for contraceptives, sterilizations and abortion-inducing drugs.
This adds up to what many see as potentially one of the biggest tests in years of religious free exercise in conflict with government and a critical test of strength in the war between religion and secularism.
The late Father Richard John Neuhaus, author, editor and astute observer of religion in the United States, anticipated many of these matters and discussed them at length in his book “The Naked Public Square: Religion and Democracy in America,” published in 1984. Thirty years later, the volume still sheds light on current events.
Starting from the premise that in a democracy “the public business is carried on in conversation with the actual values of people who are the society,” Father Neuhaus notes that the majority of Americans identify themselves as Christians. That remains true today, with 77 percent in a 2012 Gallup survey saying they were Christian.
Nevertheless, in recent decades, the author continues, “pluralism” has been constantly invoked to bring about a new situation which he describes like this: “Public policy decisions reflect a surrender of the normal to the abnormal, of the dominant to the deviant.” But even so, Father Neuhaus adds, most Americans have “gone along assuming that of course morality, public and private, is derived from religion.”
The Supreme Court’s new foray into the church-state thicket — this time on the question of civic prayer — can perhaps be seen as a small, highly conditioned gesture toward confirming people in that view.
Russell Shaw is an OSV contributing editor.