Like all Americans who value the separation of church and state, I was dismayed by the 5–4 ruling of the U.S. Supreme Court in the case of Town of Greece, New York v. Galloway et al. rendered on May 5, 2014. In this case, the Supreme Court overruled an appeals court decision and decided that the pattern of invocations practiced by the town council of Greece did not violate the U.S. Constitution, specifically the establishment clause of the First Amendment. After reading the entire decision—both the majority and all minority opinions—I have concluded that the majority erred primarily because it based its decision on tradition rather than on reason applied to the First Amendment. The practices of government at any level are not morally or legally correct merely because they have been habitual. I am sure that the court’s decision will be analyzed for a long time to come, and it should be. However, it’s time for us who seek the separation of church and state to turn the page and ask ourselves, “Where do we go from here?”
To me, it seems that we have five main options:
1. Disrupt government-sponsored prayers, especially when they occur in legislative sessions at all levels of government.
2. Do nothing, thus acquiescing to the status quo.
3. Work for a constitutional amendment to outlaw government-sponsored prayers.
4. Work for the election of presidents who will nominate persons for the Supreme Court who are likely to be approved by the Senate and who are more supportive of church-state separation than most of those currently on the bench.
5. Work within the Greece v. Galloway ruling to change the pattern or format of prayers at government meetings.
The first option is a poor one because it will result in arrests, prosecutions, trials, and penalties of various sorts for the protestors, and it is unlikely to persuade government bodies to end their prayers. The second option is inadequate. To do nothing will simply result in an increase in the favoritism shown by government for the majority religion, Christianity, which will become even more dominant in our culture than it already is. The third option is a good one, and we should probably put some effort into it. However, getting the desired constitutional amendment is probably centuries away. We should pursue the fourth option, but it may not pay many dividends. Unfortunately, future Supreme Court decisions are likely to rely on the precedent set by Greece v. Galloway, in which even the minority opinion, written by Justice Elena Kagan, endorsed the idea that government-sponsored prayers in themselves are not unconstitutional. It seems to me that the only reasonable way to go at this time is to vigorously pursue the fifth option.
We should push government bodies at all levels—federal, state, and local—to change their current invocation practices (if they conduct invocations), to be less coercive or pressuring, be more fair to persons of different worldviews, and be more compliant with the guidelines of the recent Supreme Court decision. Although he supported the majority opinion of the court, Justice Samuel Alito referred in a separately written opinion to a hypothetical “best practices standard” that might govern invocations for legislative bodies in the future. I think that we should make the hypothetical a reality and promote a new standard for invocations at public meetings of government bodies.
What should a legislative body, including a town council, do to establish a proper system of invocations? I propose the following four actions:
1. Determine the distribution of world-views within the area of its governance. This can be done either by looking for population surveys that have already been conducted or by commissioning a new survey. Any survey used should meet the highest scientific standards. A proper survey would show what percentage of persons in the area hold to Christian, Jewish, Muslim, and other religious and nonreligious worldviews. A new survey every five years may be required to keep up with demographic changes.
2. Devise a schedule by which invited representatives of the worldviews in a community deliver the invocation at meetings on a rotating basis. The frequency of invocations on behalf of worldviews should be proportional to the percentages of persons in the community who espouse those worldviews, which would already be determined by the aforementioned scientific survey. So, for example, if there are twenty-four meetings per year at which prayers are to be presented and if Christians comprise 75 percent of the population in the area of governance, then representatives of Christianity should be invited to present the prayer on eighteen of the twenty-four occasions. If the nonreligious comprise 14 percent of the population, as they do in the city where I live (Tallahassee, Florida), then representatives of the nonreligious should be invited to present the prayer on three of the twenty-four occasions. In the current example, there would be one meeting per year set aside for a representative of a minority worldview to give the prayer, and this would be a minority with less than 1/24 or 4 percent of the population. This idea of a “wild card” invocation opportunity can be applied to any governmental body with known meeting schedules. In Greece v. Galloway, the court made it clear that government bodies should not discriminate against persons of minority worldviews who ask to deliver the invocation. Fair systems of rotation can and should be developed.
3. Provide proper training or printed information in advance to all representatives who will present invocations. This training or information should describe the qualities of an invocation that the Supreme Court has recognized in Greece v. Galloway as being desirable or conforming to the First Amendment. In the words of the Supreme Court majority opinion, a prayer given before any legislative body should: (a) not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief”; it should (b) lend “gravity to public business, remind lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society”; yet (c) not “prescribe a religious orthodoxy.” It should (d) “address his or her [the speaker’s] own God or gods as conscience dictates”; (e) “reflect values long part of the Nation’s heritage”; and (f) be “solemn and respectful in tone” so that it “invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.” It must (g) not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion” while it should (h) “unite lawmakers in their common effort” and (i) “seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.” It may (j) not “betray an impermissible government purpose” but must (k) embody a “part of our heritage and tradition, part of our expressive idiom largely to accommodate the spiritual needs of lawmakers with due respect for those who adhere to other beliefs.”
4. Announce a disclaimer prior to every invocation that emphasizes that participation in the prayer is voluntary and that failure to participate will not be held against any legislator, citizen, or other person attending the meeting. The disclaimer should be standardized and delivered by the presiding governmental official. Th
e following wording would work very well: “Before we begin our regular invocation, I wish to remind all those present here today that your full participation in the invocation is not expected, required, or demanded. You may stay or leave; stand, sit, or kneel; take off or keep on your headgear; bow your head or not; and close your eyes or not. However, if you remain in the room, I only ask that you remain silent during the invocation. This [insert county, city, state, or national] governmental body guarantees that your participation or nonparticipation in the invocation will have no effect whatsoever on your business with us. The views of our guest giving the invocation today are his/her own and do not necessarily represent the views of this governmental authority. Today our invocation will be presented by [name and affiliation]. You may begin.” This disclaimer will help to reduce the entanglement of church and state, lower the social pressure to participate, help attendees feel comfortable, and reduce the chances of future legal action.
In its decision of Greece v. Galloway, the U.S. Supreme Court did not give carte blanche to governmental bodies to conduct prayers. In writing the majority opinion, Justice Kennedy wrote, “In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content.” In its decision, the court has provided some guidelines that center on fairness, especially encouraging the recruitment of persons from various worldviews within a community to present invocations and discouraging the association of any governmental body with any particular worldview. While the court’s decision has been disappointing to me and my freethinking friends, all is not lost. Our battle cry should now be “No Invocations without Representation!”
Gary Whittenberger is a writer and retired psychologist living in Tallahassee, Florida. He is a member of several freethought groups, including the Center for Inquiry.