On May 5, 2014, the Roberts Court took another significant step toward eroding the wall of separation between church and state. Writing the majority opinion in the 5-4 Greece v. Galloway decision, Justice Anthony M. Kennedy declared, “The prayers delivered in Greece …may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a “spirit of cooperation.” Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation.” Given how many Americans have left religion behind (I call them Transcenders), it is especially disturbing, though hardly surprising, that the today’s Court appears intent on turning the Establishment Clause clock back not forward.
The Roberts Court is probably among the most ideologically driven in our history. But this decision certainly isn’t the first assault on separation. Justice Kennedy grounded his opinion in the earliest of precedents. “The First Congress”, he wrote, “voted to and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then.” Indeed, we have become so accustomed to having invocations delivered by clergy at all manner of events, private and public, that we think nothing of it. My father delivered an invocation at my public high school graduation and I did the same at various public occasions in my years serving a congregation. Presidential inaugurations always include invocations and benedictions. Some, as was true with Rick Warren’s appearance in 2009, have caused controversy but not much over whether or not they are appropriate.
I have always found the government funded Senate and House chaplaincy cited by Kennedy especially curious. An early draft of my book included a consideration of that institution in a prospective chapter entitled God Rules. I wrote there about theocracies including the one for which some of today’s hard right surely wish. Given last week’s decision, let me share some of what I wrote then specifically in the context of the Establishment Clause and the push and pull that has existed about in throughout our history, including those chaplaincies.
Thomas Paine, the inspirational articulator of the revolution without whose pen John Adams contended, “the sword of Washington would have been wielded in vain", was overtly hostile to organized religion. “All national institutions of churches,” he wrote, “whether Jewish, Christian or Turkish [Muslim] , appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.” These are the kind of words one might expect from the late Chris Hitchens, who wrote a book about Paine. George Washington felt otherwise, spontaneously adding the words “so help me God” to his presidential oath and then referencing the Almighty in his inaugural.
Thomas Jefferson, more aligned with Paine, was the one who articulated the classic formulation of separation in his famous letter to the Virginia Baptists. “Because religious belief, or non-belief, is such an important part of every person's life,” Jefferson wrote, “freedom of religion affects every individual. State churches that use government power to support themselves and force their views on persons of other faiths undermine all our civil rights. Moreover, state support of the church tends to make the clergy unresponsive to the people and leads to corruption within religion. Erecting the wall of separation (my italics) between church and state, therefore, is absolutely essential in religion. Erecting the wall of separation between church and state, therefore, is absolutely essential in a free society.” But the line drawn by Jefferson has been fluid since the earliest days of the Union — think Washington’s oath.
As cited in his opinion by Justice Kennedy, one of the oldest and seemingly benign examples of that fluidity plays out daily on the floor of the United States Senate. Every session begins with an invocation delivered by a clergyman, usually the salaried employee of the body. The chaplains have all been non-Catholic Christians. While the Senate chaplaincy and the practice of invocations is relatively well known, its exact nature and the broader services it provides might surprise you.
“Throughout the years,” says its official website, “the United States Senate has honored the historic separation of Church and State, but not the separation of God and State (my italics).” This is a pretty aggressive assertion for a government website. It plays with words as if they had a different meaning, but really are a semantically nuanced way of sidestepping, if not subverting, separation. Where does it leave the religious who also cherish the theological neutrality of their secular state or the many citizen atheists who would absolutely reject this notion? From its start in 1789 the website continues, “All sessions of the Senate have been opened with prayer, strongly affirming the Senate's faith in God as Sovereign Lord of our Nation.” Really? The Senate (all of its members and the body as a whole) has faith in God — considers God the sovereign Lord of the nation?
Over the years this chaplaincy evolved from a part time assignment into what is portrayed as a full-time “nonpartisan, nonpolitical, and nonsectarian (a stretch)” job. The website tells us that the current incumbent, Reverend Barry Black (the first Seventh Day Adventist), opens each session with a prayer and offers “counseling and spiritual care for the Senators, their families and their staffs, a combined constituency of six thousand people.” He helps them with spiritual and moral issues, assists with research on theological and biblical questions, conducts Bible study groups and oversees a weekly Prayer Breakfast, all at taxpayer expense. One wonders what “theological and Biblical questions” the legislative body of a secular state might have, or could officially have, considering our Constitution.
The point is that while the Court’s decision in Greece is very disturbing to those of us who believe firmly in the separation of church and state, and also as evidence of how ideological this court, Kennedy’s logic is totally in line with what is afoot under the Capital’s dome. Nonetheless, as Katherine Stuart writes in her recent NY Times Op-Ed, this was an especially big win for what she describes as the “prayer lobby”. And to underscore how big a victory that was, she sites the Township of Greece’s “prayers that acknowledge the saving sacrifice of Jesus Christ on the cross”. That’s hardly neutral religious language and it’s quite different than what we might hear (I hope) from a Senate chaplain. Nevertheless, this very specific theological statement didn’t trouble the Roberts Five.
Stuart suggests that an underlying objective of the prayer lobby is to restore that we are (as they see it) a Christian nation. Of course, the logic for their case in part is that the majority of Americans were and still are Christians, albeit many of them nominally so. “In his concurring opinion”, Stuart writes, “Justice Samuel A. Alito Jr. dismissed concerns about the blatantly sectarian tilt of the town’s proceedings, which were led exclusively by Christian ministers for nearly a decade, by pointing out that Jews make up a mere 3 percent of the local population and alleging that other non-Christian groups are no larger.” Wow! For me, Alito’s statement summarizes the problem. The very idea of the Establishment Clause is to protect the very 3% that he talks about. And what do you say Mr. Justice, about the 20% (1 in 3 of Millennials) of the citizenry — our fastest growing demographic — that have left religion behind? Separation is good for everyone, but it is absolutely essential for the minorities, religious and not. That Alito and his colleagues don’t get that or purposefully refuse to do so exposes their underlying ideology. In a not so funny way, it reminds me of their equally laughable contention that powerful corporations are the same and have the same rights, as individuals.
The Court’s decision in Greece marks a sorry day for the Establishment Clause, but more so for the country and its diverse citizens that it was meant to protect.