How the Supreme Court Helped Secure Religious Liberty This Week

Travis Weber is Director, Center for Religious Liberty at Family Research Council. This article appeared on, May 9, 2014.

Earlier this week, in Town of Greece v. Galloway, the Supreme Court issued a 5-4 decision holding that a legislative prayer practice permitting local ministers to offer prayers (un-edited by the government) before a local assembly did not violate the Establishment Clause. This is a major win for religious liberty, and for the free expression of religion in public spaces. Numerous commentators have somehow missed the fact that this benefits those of all faiths.

In Galloway, the majority held that prayer practices open to all faiths are consistent with the Court's jurisprudence and the long history of legislative prayer in the United States. The alternative - mandating nonsectarian prayers before government bodies - would require the government to select the "appropriate" level of religion. This result would be self-evidently disastrous, and, as the Court ultimately held, incompatible with constitutional precedent.

The common sense of the majority's ruling is best illustrated by contrasting it with the view of the dissenting justices, who believe the Town of Greece violated the "norm of religious equality" conferred by the First Amendment by (1) not offering sufficiently nonsectarian prayers, and (2) not doing enough to ensure diverse prayers of various faiths were presented at town meetings. Ironically, the ideas advanced by the dissent have the unfortunate result of actively involving government in decision-making regarding religion - the very thing the Establishment Clause was intended to prevent.

First, making local governments the judges of what constitutes sufficiently nonsectarian prayer would require them to take active steps to censor anything "too religious." But if a town is drafting a "nonsectarian" prayer, who decides what is sufficiently nonsectarian? Who decides what words are included, and what phrases are used? Such a scenario provides the government with obvious opportunity for abuse and unnecessary interference with religion. Thankfully, the majority recognized this when it stated, "[t]o hold that invocations must be nonsectarian would force the legislatures . . . to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree."

Second, turning government into a "religious diversity enforcer" would actively involve government in making a variety of decisions about how diversity and inclusion are to be achieved. Who decides what steps are needed when mandating more religious inclusivity? What methods are used? Should a town conduct a search within a 50-mile radius for ministers of different faiths? Is a phone call notifying those ministers sufficient? Or should they be more actively solicited? How many different faiths are required - four or five? Or more? Should ministers be invited in accordance with the percentage of the local population adhering to that religion? It is obvious that such questions are not only ridiculous, but involve the government in religious decision-making and all the opportunity for abuse such involvement entails.

In either scenario, the Galloway dissenters promote active government involvement in religious decision-making, leading to interference with religion, the very things they claim to be against. Justice Kagan's solution would not obviate the problem of the government "align[ing] itself with, and plac[ing] its imprimatur on, a particular religious creed," but would instead involve the government in increasing levels of religious decision-making.

Despite the majority's clear holding and the clear reasons for it, some are still confused. Katherine Stewart, writing in the New York Times, appears to believe that Galloway ushers in a modern version of the Crusades, claiming (erroneously) that "[i]n theory" the Town of Greece's prayer policy gave "every sect an equal shot," but "[i]n practice, the town government has unquestionably identified itself with what it takes to be the majority religion in the area." Had she checked the factual record of this case, Ms. Stewart would realize that the town - which "at no point excluded or denied an opportunity to a would-be prayer giver" and permitted "minister[s] or layperson[s] of any persuasion" to participate - actually did make the prayer opportunity open to all in practice. Further, the irony of her position, apparently lost on Stewart, is that her concern that government would "unquestionably identif[y] itself" with a religious view is the exact same concern shared by the majority of justices here, who reminded us that "[t]o hold that invocations must be nonsectarian would force the legislatures . . . to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree."

The Galloway Court rightly recognized that requiring government to establish which prayers were or were not "too religious" - all in the name of complying with the Establishment Clause - would have been the ultimate constitutional irony. Thankfully, it rejected that view. It is now time to bring such level-headedness to other areas of Establishment Clause jurisprudence.