Lloyd Constantine

"Commentary: Redefining separation of church and state"

High court rules Monroe County town can start meetings with prayer

A sharply divided Supreme Court (5-4) recently decided that the New York town of Greece could continue its practice of beginning monthly public town board meetings with pervasively Christian prayer.

The majority and dissenting opinions included personal invective among the "brethren," creating tension only slightly relieved by the absurd concurring opinion of Justice Clarence Thomas. He sided with the majority but separately wrote that New York, and any state, could constitutionally establish an official religion but the United States was "probably" prohibited from doing that.

The facts surrounding Greece's monthly mini-prayer service are undisputed. Beginning in 1999 and continuing through at least 2010, Greece invited local clergy to act as visiting chaplains and begin board meetings with a short service of their choosing. For nine years all the clergy were Christian. They typically began the meetings by asking town residents attending to "stand and pray in the name of Jesus Christ," afterward invoking "the saving sacrifice of Jesus Christ on the cross," "the plan of redemption that is fulfilled in Jesus Christ," "the life and death, Resurrection and Ascension of the Savior Jesus Christ," and seeking "the guidance of the Holy Spirit as the Greece Town Board meets."

When such prayers ended some board members made the sign of the cross, after which residents began to petition the board for action, such as zoning variances.

The Christian clergy were drawn from a Chamber of Commerce guide and a town roster that only listed Christian churches in Greece, a town with population of 94,000, adjacent to Rochester that is home to some 3,000 Jews, a Buddhist temple and followers of other religions and non-believers.

After nine years of exclusively Christian prayer, Susan Galloway and Linda Stephens protested and eventually sued. Greece then allowed two Jewish laymen and a Wiccan priestess, who asked to act as guest chaplains. Greece also invited the chairman of a Baha'i congregation to lead the prayer at one meeting. After 2008, when the lawsuit was filed, all the clergy were again Christian, including two who used their prayer opportunity to call Galloway and Stephens a "minority" who are "ignorant of the history of our country" and lamented that other towns did not have "God-fearing leaders."

The U. S. Court of Appeals found Greece's practices unconstitutional as violative of the First Amendment's command that "Congress shall make no law respecting an establishment of religion. ." After the Fourteenth Amendment was ratified in 1868, the court held that states also could not establish religion — by decreeing a state devised faith, advancing one religion or promoting religion over non-belief.

Reversing the appeals court and disagreeing with four dissenting justices, the majority explain that for more than two centuries chaplains have begun legislative sessions with prayer often, but not always, non-denominational.

No one on or appearing before the court in this case claimed that Greece could not commence its meetings with prayer. The question bitterly dividing the court was whether the process for selecting chaplains, the content of and manner in which they led these prayers, and the likely effect on residents crossed an impermissible line.

In previous cases the high court found that line breached when members of the public reasonably might feel "coerced" into participating in prayer or if the religious exercise was "exploited to proselytize or advance any one faith or belief."

The majority found that Greece's practices had not proselytized or advanced Christianity. The minority of four justices found it clearly had. The dissenters — Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — not coincidentally included the three Jews and three women on the court. They, like most people of their ages, faith and/or gender, have been present at thousands of public events pervaded with the symbols, language and assumptions of the Christian and male-dominated society.

Each reader can decide whether the practice in Greece constitutes proselytization of Christianity and whether residents seeking assistance from the board might feel coerced to participate or simply not walk out.

My answers to these questions are informed by experience as a student subjected to official New York state prayer during the early 1960s. The prayer written by the Board of Regents for recitation in every public school was: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Strikingly neutral, especially when contrasted with the deep Christian doctrine spoken in Greece.

Parents of 10 of my schoolmates sued, claiming this "plain vanilla" prayer constituted an establishment of religion. The plaintiffs, who included Catholics, Protestants, Jews, Ethical Humanists and atheists, won in the Supreme Court decision Engel v. Vitale. When it was announced in June 1962, at the end of my freshman year at Herricks High School, I and many friends were relieved by the elimination of a tense daily ritual, spawning nastiness between kids like me who had been instructed by parents to refuse participation and those who recited along with the homeroom teachers, who had no such choice.

One day, an otherwise sweet young teacher got caught in the controversy, when a classmate refusing to pray was berated by others. Miss Duvall asked Gail what religion she practiced. Gail replied "my father was Jewish, my mother was Christian but we don't practice any religion," to which Duvall awkwardly retorted "well unless you figure out what you believe you won't amount to anything." Later that week, Duvall was called upon to publicly apologize.

The differences between Engel in 1962 and Greece this month speak volumes about how the once clear separation of church and state has seriously eroded. That barrier was a pillar of our "more perfect union" and a dazzling departure from the established Church of England and its compulsory Book of Common Prayer, that signers of the Constitution wanted to be free of.

All 39 were Christian.

Without clear church/state separation it is doubtful this nation would have achieved its unparalleled greatness. Nor would we now have a Supreme Court comprised entirely of formerly vilified and excluded religious minorities. All nine justices are Catholic or Jewish lawyers who came of age under the law of Engel.

The shortsighted majority in Town of Greece should prayerfully ponder that.