On the face of it, Town of Greece v. Galloway is a victory for the constitutional rights enshrined in the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”
You might have expected me to say that the ruling was a victory for religious liberty (i.e., the “Free Exercise Clause” alone). Moreover, that this victory was won against the clause that precedes it, the so-called “Establishment Clause” which, as we all know, demands that the federal government “erect ‘a wall of separation between church and State.'” We’ve gotten so used to the endless tussle between the two clauses, that we see the issue of public prayer as an either-or. Either we follow the Establishment Clause and we clean the public square of all religious presence, or we uphold the Free Exercise Clause.
But the truth is that there really is no such thing as the Establishment Clause—or the Free Exercise Clause, for that matter. There is one and only one clause, which is worth reading carefully again: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” In short, the national Legislative branch (and by implication, the Executive and Judicial Branches), shall not establish a national church nor shall it meddle with the free exercise of religion on the state, local, or individual level.
This is a matter of historical fact. At the time of our founding, debate about the merits of the newly-proposed Constitution was divided between those who believed that we needed a strong national government (the Federalists) and those who feared that a strong national government would all too quickly turn tyrannical, and usurp the rights of the various state and local governments as well as the rights of individuals (the Anti-Federalists). Because the Anti-Federalists believed the Constitution added too much power to the national government, they would not ratify it without further protection against the possible intrusions of the new national government on the state, local, or individual level.
Well, what could be more tyrannical than the national government demanding that the Town Board of Greece, NY not offer short prayers at the beginning of its meetings? Greece is a suburb of Rochester, NY, and has a population of less than 100,000. The Town Board has been inviting local clergy in this predominantly Christian suburb to offer opening prayers since 1999. The fact that the prayers have a Christian tone merely reflects the localreality that (as the Court’s decision notes) “nearly all of the local congregations are Christian…” Protecting local communities against meddlesome intrusions by the national government is the very heart of the First Amendment.
In regard to the specifically Christian content of some of the prayers offered in Greece, the Court rightly rejected the notion that the federal government should be involved in a continual review of the content of prayers to ensure that they met some kind of non-sectarian standard. “To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.” The federal government is prohibited from establishing even a non-sectarian religion, and that is precisely what the continual meddling in the local free exercise of religion would do.
So how did we get the notion that the so-called Establishment Clause demands that the federal government should actively secularize all the nation’s various public squares? To make a long story short, it was invented by those who wished to de-Christianize our culture.
Look carefully again at the First Amendment as quoted above. It doesn’t say anything about erecting “a wall of separation between church and State.” These words do not occur either in the Constitution itself or anywhere in any amendment. They come from Justice Hugo Black in an earlier Supreme Court case, Everson v. Board of Education (1947). As I detail in my Worshipping the State, Black quite literally imported them into his judicial reasoning as a substitute for the actual words of the First Amendment, thereby changing the meaning from a negative limit on the federal government’s power, to a positive mandate for the federal government to actively de-Christianize the culture.
That’s what Black and the secular-minded like him wanted. And that’s why Everson has been used as a precedent to do everything from removing nativity scenes, crosses, and Ten Commandment plaques from public places, to prohibiting Bible reading and prayer at public schools.
The plaintiffs in Town of Greece v. Galloway—Susan Galloway is Jewish and Linda Stephens is an atheist—were merely following the string of precedents beginning with Everson in claiming that the prayers offered by the clergy at the Town Board were a violation of the Establishment Clause. To cite an important example, Engel v. Vitale (1962) declared the following prayer that opened the school day in New Hyde Park, NY to be a violation of the Establishment Clause: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.”
That’s quite mild in comparison to a typical prayer offered by guest clergy at the Town Board meetings in Greece, which begins with “Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community,” and ends with, “We ask this in the name of our brother Jesus. Amen.” Some were even more explicitly Christian, as the following prayer offered by a clergyman during Lent: “Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter.”
The four dissenters in the 5-4 decision in favor of the Town of Greece asserted that this specifically Christian prayer went far beyond the mild prayer prohibited in Engel v. Vitale, and so should be prohibited as a violation of the Establishment Clause. That makes Town of Greece v. Galloway a very fragile victory: a string of judicial precedents stretching back to Everson would seem to stand in opposition, and a single vote would have turned victory into defeat.
What would give a real and solid victory is almost unimaginable: the Supreme Court admitting that Everson (and all that flowed from it) was a mistake, and that the First Amendment really is a negative restriction on federal power rather than a positive mandate for secularization.