The 2013–2014 term of the U.S. Supreme Court could be its most important in years with respect to church-state issues. We already know that the court will hear a case involving the constitutionality of invocations in local government settings such as city hall or county board meetings: Town of Greece v. Galloway (No. 12-696). By itself, this case would make the upcoming term significant, but the Supreme Court may also have a chance to resolve the contentious issue of whether the federal regulation that requires employers to provide contraceptive services under the Affordable Care Act (a.k.a. Obamacare) violates the Religious Freedom Restoration Act (RFRA). We will not know for a few more months yet whether the Supreme Court will intervene, because there are literally dozens of lawsuits on this issue winding their way through the courts. Also, it is possible that the Department of Health and Human Services (HHS) could make the entire cascade of lawsuits moot by rescinding the regulation in question. I think that is extremely unlikely; it is much more likely that the Supreme Court will resolve this issue, with the principal uncertainty being the timing of the court’s involvement.
Back to the prayer case: interest in this one is high in part because this will be the first time in thirty years that the court has considered the constitutionality of prayer in the setting of a government meeting. The court last considered this issue in Marsh v. Chambers, 463 U.S. 783 (1983), in which it ruled that prayers by chaplains in legislatures did not violate the establishment clause. (I remember that decision well because at the time I was representing Madalyn Murray O’Hair in a case challenging chaplains in Congress; Marsh made my case moot.) Marsh is notable because it did not apply the court’s accepted test for constitutionality in establishment clause cases, that is, the tripartite test of Lemon v. Kurtzman. (Does the government action lack a secular purpose? Does it advance religion? Does it entangle government with religion?) Instead, it found legislative prayer to be a unique historical exception to the rule that government endorsement of religion is impermissible. The majority opinion in Marsh did place some limits on legislative prayer, however, indicating that legislative prayer might be unconstitutional if the “prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other faith or belief.”
In the immediate wake of Marsh, few cases challenged official prayer in the context of government meetings as opposed to public-school events. Marsh seemed to have effectively foreclosed such challenges. However, in the last decade a number of cases have challenged prayer in the context of local government meetings, such as county board meetings. For various reasons, the plaintiffs in these cases thought Marsh was distinguishable, and on a few occasions, they have been successful. For example, in Joyner v. Forsyth County, 653 F.3d 341 (2011), the U.S. Court of Appeals for the Fourth Circuit ruled that a county board’s prayer practice violated the establishment clause because the prayers were overwhelmingly Christian with explicit references to Jesus Christ and could therefore be interpreted by reasonable observers as a vehicle for government support of a particular religion.
The appeals court in Town of Greece v. Galloway similarly analyzed how the prayer practice was actually implemented by the town council. The court found that the prayers being offered were mostly Christian and that the town council took no steps to avoid identifying the town with the Christian creed being promoted in the prayers, such as advising the public that the prayer practice was not intended as an official endorsement. Moreover, the court noted the presence of the public at town-hall meetings and the fact that those in attendance were expected to participate in the prayer. Under the “totality of the circumstances,” the court concluded, the Constitution had been violated.
It is unknown why the Supreme Court decided to review this decision. In other establishment-clause cases—for example, in the court’s decisions on the constitutionality of Ten Commandments monuments on public land—the court has emphasized the importance of fact-intensive, context-sensitive inquiry. Therefore, it’s possible that the Supreme Court will endorse the approach taken by the appeals court in Town of Greece v. Galloway. More likely though, it will issue a decision with broader implications. The court may approve prayers at the level of local government absent extraordinary circumstances (such as compulsion to take part in the ceremony), or it may conclude that invocations at the level of local government are different from prayers in Congress or state legislatures given that the public often takes part in such meetings whereas there is no public participation in formal legislative sessions in Congress or in the states. It could also issue a decision with even broader implications, that is, one that addresses the limits on the role of religion in public life. In light of the current composition of the court, I’m not eager to have it address this larger question.
As a secular humanist, I find invocations at any government meeting objectionable, whether they are at the federal, state, or local level. Courts that have found prayers at local government meetings impermissible because of their sectarian nature have usually emphasized how people of other faiths are made to feel as though they are second-class citizens. But prayers delivered in government settings make atheists feel like second-class citizens regardless of their specific content. Official prayers unmistakably align the government with belief in a deity who answers prayers. Aiming for diversity in the wording of prayers by having representatives of different faiths deliver the prayers still leaves us out in the cold. The government should get out of the prayer business entirely and let the people come to their own conclusions on religious matters. If we need a solemn opening for any government body, why not have all the officials declare together: “We pledge to act responsibly and in the people’s best interest, while respecting their fundamental freedoms”?
Let us now examine the battle over HHS’s contraceptive mandate (You can visit the web page of the Center for Inquiry’s Office of Public Policy for more information on this dispute at http://www.centerforinquiry.net/opp/news/cfi_urges_obama_administration_to_protect_womens_access_to_birth_control/). Dozens of lawsuits have been filed both by nonprofit organizations that have some connection to a religious body, such as Catholic hospitals, and for-profit companies whose religious “identity” is based entirely on the beliefs of their directors or owners. The common core of all these lawsuits is that the HHS mandate supposedly requires some persons to act contrary to their religious beliefs. This allegedly violates RFRA because that prohibits the federal government from substantially burdening a person’s exercise of religion absent a compelling interest.
In my view, the HHS mandate does not place a substantial burden on anyone’s exercise of religion. The regulation does not require anyone to use contraception, obtain contraception, or even distribute contraception to coworkers or employees. The Catholic Church, along with other religious groups and individuals, has argued that the conscience of employers is being violated because they have to pay for the insurance that covers employees. But the most recent version of HHS’s rule obviated even that thin argument by stipulating that contraceptive services would, in the case of qualified, objecting employers, be provided by the insurer at no cost to the employer. In essence, what the church is now complaining about is that it is not able to control the conduct of the employees who work at its affiliated corporations, and it feels tainted by their possible use of contraception. However, being deprived of the ability to control the conduct of others such that they conform to one’s own religious beliefs does not constitute a burden on a person’s exercise of religion.
It is true that HHS’s revised rule will still require for-profit companies to pay for the cost of insurance coverage for their employees, and this coverage will include contraceptive services. But RFRA should not be interpreted as protecting employers, including corporations, as opposed to individuals. A for-profit corporation has no religious identity. It does not pray, receive the sacraments, or worship. If we were to entertain the notion that for-profit companies have religious identities, how would that identity be determined? By the religion of the majority of its board of directors? By the religion of the majority owner? Could a corporate merger change the religious identity of the company? Should we describe the merger as a “conversion”? Merely to ask these questions shows the absurdity of allowing corporations to claim a right to the free exercise of religion.
Those who seek to overturn the HHS regulation on the grounds that it interferes with religious belief are paving the way for a fractured legal system that would carve out special exemptions for religious groups even when those exemptions burden others. If the Supreme Court were to intervene in this dispute and sustain the objections to HHS’s regulations, the short-term consequences would be very significant and could result in the extent of employee health-care being dependent on the religious “identity” of the employer. If a Catholic hospital can deny coverage for contraception, presumably businesses owned by Jehovah’s Witnesses could refuse to pay for blood transfusions. The long-term consequences might be even more dramatic and could transform our legal landscape. Instead of one secular law for all, we could have special laws for Catholics, another set of laws for Jews, another for Sunni Muslims, and so on.
The founders gave us a secular government—one that was de-signed to have no authority in religious matters and also to be insulated from religious influence on public policy. The Supreme Court’s coming decisions may indicate the extent to which the founders’ design will be preserved.