On Sunday, Oct. 29, five justices of the United States Supreme Court — John Roberts, Antonin Scalia, Clarence Thomas, Elena Kagan and Stephen Breyer –– ascended the steps of the Cathedral of St. Matthew the Apostle in Washington, D.C. to attend the “Red Mass,” an annual mass held in a Catholic Church for judges, attorneys and government officials to request guidance from the Holy Spirit for those who seek justice. Yesterday, the Court began hearing oral arguments for the new fall term. As is custom, at the beginning of arguments, the marshal of the Supreme Court proclaimed to those in the courtroom: “God save the United States and this honorable court.”
It is to this court that two citizens challenging religious invocations in government practice come in the pursuit of justice.
In the case of Greece v. Galloway, two women of the town of Greece, N.Y. have challenged the local legislature’s practice of religious invocations as contrary to the First Amendment’s protection against the establishment of a state religion. Now, bear with me while I give some background, for legal language has a tendency to be dry. These citizens contend that the prayers, offered prior to each assembly session, are sectarian and serve to proselytize Christianity. The chaplains who led prayers often included direct references to Jesus and frequently asked citizens in attendance to bow their heads during prayers. Prior to 1999, a moment of silence preceded the meetings.
The U.S. Second Circuit Court ruled for the plaintiffs. Nevertheless, the Supreme Court has granted an appeal. So here we are, faced with the admittedly awkward situation of a majority of the members of the Supreme Court, shortly after attending the Red Mass, hearing arguments in a case about government entanglement with religion. These circumstances suggest that the outcome of this case might be decided in the town’s favor. Yet legally speaking, there is a strong case that the town’s practices are sectarian and thus manifestly violate the endorsement test established in the case of Lynch v. Donnelly — which holds that if a reasonable onlooker perceives that a government action either promotes or belittles religion, such an action is unacceptable.
Former members of the Supreme Court have said that the exclusion of minority religious groups or atheists in public legislative proceedings tells these groups that their views are “not similarly worthy of public recognition nor entitled to public support.” In the process, such groups are effectively denied a political right to participate equally in government. I should point out that in Greece, N.Y., the town’s policy regarding legislative sessions does not explicitly exclude minority religious groups. But the policy is only superficially non-discriminatory. In effect, it promotes one religion. This sort of favoring diminishes equal political participation. The policy, consequently, is unjust.
The establishment clause of the First Amendment is partly designed to prevent this chauvinistic attitude, which perpetuates divisiveness in civil society. Such an attitude hurts the egalitarian spirit of democracy. Sectarian religious attitudes, when applied to government, are intrinsically chauvinistic; they create an atmosphere of favoritism and exclusion. The plaintiffs in the Greece v. Galloway case simply seek the right to participate in local government without having their views regarded as inferior when they resist pressure to partake in sectarian prayers.
Again, I do not mean to disparage religion: only to say that religion in the public sphere, especially when it is sectarian, creates undeniable problems. The Supreme Court should see the risk that legislative prayer poses. However, in attending the Red Mass, some justices have already exhibited a sectarian attitude of sorts. This attitude is not likely to help them decide the case impartially. The movement for an increased inclusion of religion (specifically Christianity) in the public sphere is far-reaching. The case in legislatures, specifically, should be crystal clear. But the ideal function of a legislative assembly is a gathering of equals. As soon as some bow their heads and others do not, equality is lost.
Conor Kelly is a Viewpoint columnist for The Cavalier Daily. His columns run Tuesdays.
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