Yesterday we did a post on the Supreme Court’s decision (5-4) to allow sectarian prayers in town meetings in the town of Greece, New York. Today at The Washington Post three scholars of church-state relations in the United States–John Ragosta, Paul Finkelman, and Steve Green–have weighed in on the issue. They find the Court’s decision to be “less than satisfying.” Here is a taste:
The court’s decision, though, invites continued litigation: Nondiscrimination, coercion, and the question of mandatory attendance and penalties will continue to cause disputes. A town may not “coerce participation by nonadherents,” and legislative chaplains should not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”
The heart of future litigation will likely be whether the governmental prayer is sufficiently coercive or proselytizing, a point on which, in this case, the court split three ways (3-2-4). In fact, the court recognized that some of the prayers in Greece did violate this, but the plurality said that “absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” it will, in essence, look the other way (a troubling position in First Amendment doctrine). Setting aside whether the facts in Greece met that standard, this “fact-sensitive inquiry” is surely an invitation to litigation and discord.
The court does little to explain what type of “coercion” will be necessary and, as the dissent points out, is relatively free in finding no coercion in this case (a religious minority might well see the matter differently). (Perhaps governmental prayer is like money in elections: It doesn’t really influence or coerce anyone ….)
Justices Clarence Thomas and Antonin Scalia go further; they would require that coercion be demonstrated through some forcible compulsion or fine for those who do not participate, ignoring Thomas Jefferson’s warning that government should not endorse a religious position or make a nonadherent feel less patriotic or less of a citizen, imposing “some degree of proscription perhaps in public opinion.”
There were alternatives to this troubling opinion: The court might have taken a strong position and declared that there should be no “official” legislative chaplains and no official governmental prayer — Madison’s position. This would solve the problem but not preclude public prayer. Citizens could offer a prayer during public comment periods. Board members could pray, including publicly, when not on “official business.”
This, though, was too much for the court, and it missed the opportunity to provide clarity on the narrow types of governmental prayers that it says are permissible.
Read the rest here.