The case out of New York presents an opportunity for the US Supreme Court to bring needed clarity to Establishment Clause jurisprudence. I hope they do so. We have witnessed a growing governmental hostility toward religious faith and expression in the public square. It does not serve the common good, runs contrary to our founding documents, and is unfaithful to our history as a free people. It is an improper application of the Establishment Clause, found in the First Amendment to the Bill of Rights of the United States Constitution. It is a form of religious censorship which threatens our first freedom.
WASHINGTON, DC (Catholic Online) - In the wake of the news that the IRS asked Pro-Life applicants for recognition of tax exemption under Section 501 about the actual content of their prayers comes news that another branch of the government has decided to examine the content of prayer.
The United States Supreme Court granted certiorari (Review) in the case of Town of Greece v. Galloway, et al. (docket 12-696) on Monday, May 20, 2013. Here is the official question as presented on the actual the docket of the Supreme Court. It summarizes the case and controversy.
In Marsh v. Chambers, 463 U.S. 783 (1983), this Court upheld the practice of starting legislative sessions with an invocation, based on an "unambiguous and unbroken history" of legislative prayer dating back to the First Congress. (Id. At 792.) The prayers in Marsh were offered for sixteen years by the same paid Presbyterian minister and frequently contained explicitly Christian themes. (See id. at 785, 793 n.14.)
Nonetheless, this Court held that such prayers are "simply a tolerable acknowledgment of beliefs widely held among the people of this country," and constitutional unless the selection of prayer-givers "stem[s] from an impermissible motive" or "the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."( Id. at 792, 793, 794-95.) The Court declined to apply the test from Lemon v. Kurtzman, 403 U.S. 602 (1971).
In this case, the court of appeals held that the Town of Greece violated the Establishment Clause by allowing volunteer private citizens to open town board meetings with a prayer. Though the Town had never regulated the content of the prayers, had permitted any citizen from any religious tradition to volunteer to be a prayer-giver, and did not discriminate in selecting prayer-givers, the court struck down the Town's prayer practice, applying an "endorsement" test derived from Lemon. See App. 17a. The question presented is:
Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.
Greece is a city in upper State New York which is home to about 100,000 residents. Like many cities, my own included, public legislative sessions begin with a prayer. Local clergy or lay leaders are regularly invited. As a member of the Clergy for 17 years, I have led such prayers on several occasions, locally and at the State level. It is a wonderful practice and rooted in the history of the American experiment.
Two residents in Greece, New York,Susan Galloway and Linda Stephens, did not like prayer before legislative session. So, they literally made a federal case out of the practice. They sued, claiming the practice was unconstitutional. One of them, Susan Galloway, is the named plaintiff. Her name will be memorialized in the decision of the Court.
They claimed that the prayer somehow constituted an establishment of the Christian religion. That claim was accepted by the Second Circuit Court - even though the facts clearly indicated that the prayers were offered by numerous representatives of various religious communities.
The Second Circuit took it upon themselves to decide that "a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause."
Their law suit ended up going all the way to the U.S. Supreme Court after the Second Circuit Court of Appeals held the practice to be unconstitutional. The courageous City leaders sought this review. The two complaining parties fought the review because they were happy with the Second Circuit opinion.
This dispute, since it has been chosen for review by the US Supreme Court, now has the makings of becoming a major Establishment Clause case. The last time the High Court addressed prayer at the beginning of legislative sessions was in 1983 in a case entitled Marsh v. Chambers, out of Nebraska.
In that opinion the Court upheld the practice of having a State Chaplain begin legislative sessions with a prayer as a matter of a tradition dating back to the American founding. It did not use the so called "Lemon Test", which it formulated in 1971. Thus, it did not consider the content of the prayer.
Since then, the High Court has considered prayer at graduation and at football games. In those cases it did analyze the content of the prayer. It also considered whether the party offering it was somehow a state actor thereby triggering this indecipherable application of the establishment clause.
The notion is that such a connection somehow constitutes a government endorsement of religion. Discerning the rationale used by the Supreme Court opinions in this vital area of constitutional law is futile, because there is none.
All who are concerned about religious freedom in the United States should watch this new case with great concern. As a constitutional lawyer I have long questioned the current establishment clause law in our Nation. It is clearly an invention of a judicial branch increasingly hostile to religious faith and expression.
In 1992, when I served as the Executive Director of the American Center for Law and Justice (ACLJ) I wrote a law review article entitled "In the Wake of Weisman: The Lemon Test is Still a Lemon but the Psycho-coercion Test is more Bitter Still". In that article, I trace the history of the interpretation of the Establishment clause of the First Amendment to the US Constitution and the developments of the last few decades.
I predicted the insanity that would follow from the efforts of the Supreme Court to apply the so called "Lemon Rule" (named after the Courts 1971 opinion in Lemon v Kurtzman) and it's ever expanding "interpretations" and permutations.
Insanity is precisely what has occurred.
We are experiencing a judicial ping pong game in the decisions coming out of the Supreme Court concerning the Establishment Clause.
As it relates to religious displays in the public square, there are incomprehensible opinions requiring a showing that religious symbols have a secular purpose - as though religion and the common good are mutually exclusive.
Federal Judges now make up their own rules and preferences by which they decide whether a religious symbol will be allowed to stand on public land or in a public building. There is not even a pretense that the actual words of the Establishment Clause have any effect.
As it relates to the longstanding practice of acknowledging God at the beginning of deliberations of government, the intolerant secularists are urging the Courts to become religious censors. The decision of the Second Circuit in the case the US Supreme Court accepted on Monday is an example of how bad it has gotten.
The Establishment Clause of the First Amendment to the Bill of Rights is best understood as an anti-establishment clause. It was intended to prohibit the establishment of one particular religion - in the sense of a Federal or State sponsored Church which mandated adherence from unwilling citizens.
The American founders fled coercive approaches to religion which compelled adherence to a particular sect. Yet, they were also not anti-religious. They were assuredly not against religious symbols or religious expression. Our history is filled with them. Or, more accurately, it once was.
Religious symbols and legislative prayers are no longer seen as part of the history of the West and the American founding. Rather, they are perceived as a threat to the secularist order. When symbols are allowed they are eviscerated of any real religious meaning. They become secular and acceptable.
The U.S. Supreme Court handed down two opinions in Ten Commandment cases on June 27, 2005 which added to the confusion. The Justices (at least five of them) upheld a display of the Ten Commandments on public land in Texas if the display is placed within the context of other displays that speak to the history of the Nation.
However, the Court also held that some displays of those same commandments, with the very same content, cannot adorn the walls of a courthouse, at least if they look like ones which hung in Kentucky. It appears that if the Ten Commandments are placed within the context of other codes governing human behavior, such as they are in the display hung right in the U.S. Supreme Court, they might be permissible.
When prayer is engaged in at the beginning of legislative sessions will we soon have to submit it to obtain the approval of the State censors in black robes?
The case out of New York presents an opportunity for the US Supreme Court to bring needed clarity to Establishment Clause jurisprudence. I hope they do so. We have witnessed a growing governmental hostility toward religious faith and expression in the public square. It does not serve the common good.
The effort runs contrary to our founding documents, and is unfaithful to our history as a free people. It is an improper application of the Establishment Clause, found in the First Amendment to the Bill of Rights of the United States Constitution. It is a form of religious censorship which threatens our first freedom.
Federal Judges make up their own rules by which they decide whether a religious symbol will be allowed to stand on public land or in a public building. They decide on their own what prayers are acceptable and which are not. There is no longer even a pretense that the actual words of the Establishment Clause, the Free Exercise Clause and the free Speech Clause have any objective meaning or effect.
Religious faith and expression - and the values informed by faith - serve and promote the common good. Religious freedom is a fundamental and basic human right which must be secured and protected by law in truly free Nations. Rightly understood and applied, religious freedom means a freedom for religious expression; not a removal of such expression from public places or a censoring of prayer from legislative sessions.
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