Sunday, March 30, 2014

Religion in America - A town called Greece

I did a search on my blog to see how many times I've written about the Constitution and religion or about the role of religion in our society.  It is a topic I spend a lot of time, at least relatively speaking, studying. But, it turns out, for some reason or another, those thoughts don't end up here. So, I will have something to say about it today in terms of two recent cases before the Supreme Court, which in general concerns whether rather incidental religious acknowledgment has a place in our government and if so, how much and whether religious belief can exempt us from the law? I'm a wordy fellow and thus only going to tackle one today and perhaps the other next week (and when I say ''week," I mean, of course, "eventually."

Petitioning our government or litigating in court is a tense situation for most people. My experience is with court, not government, so I can speak more knowledgeably about that. I have ever noted that sometimes clients or adversaries come across with an almost blasé attitude towards the process. It is usually my opinion that at least much of the time it is feigned and they are masking a basketful of emotions which usually burst out at some inopportune time. And, although attorneys who regularly practice in court are more used to it, they have emotions too and in many circumstances are working hard to block the feelings underneath from showing. Lay persons go to court or the government expecting fair play - a government of laws, not men, and that their issues will be determined without favoritism. One of the biggest concerns of most attorneys I know is who is the judge? Sometimes the answer decides the case before it is heard. The hope is, of course, that we will have an independent inquiry without pre-determination and bias. And, that is how the system is portrayed. In movies, where the judge is other than fair, it is because he is bent or bought or evil. These things happen, of course, but not regularly in most courts. At least, not anymore.

In real life, of course, we know that authorities and judges are as biased as the rest of us. At least, we should know that. In fact, to pretend otherwise is foolish and I would say dangerous. When attorneys go to court they often know the biases of the judges they are before. Some judges even think it is acceptable to display open favoritism and cronyism with attorneys who they are friendly with or regularly appear before them. I don't approve, but it is so hard to prove without widespread agreement among attorneys that attorneys rarely bother to complain.

The reason that to pretend otherwise is dangerous is because if you don't recognize it, then you cannot even try to prevent it or have rules and procedures that minimize it. Of course, what I say here of court is true of government in general.

So, with that in mind, consider how the two women who brought a lawsuit against the Town of Greece, New York. The case name is The Town of Greece v. Galloway. Galloway is the name of one of the plaintiffs - in higher courts, the original case name is often reversed so that the name of whoever is appealing comes first.

The purpose of the suit is to end the town board's practice of beginning their meetings with a prayer led by an invited clergy person, and almost invariably Christian in tone, will feel when their Supreme Court oral argument begins with a ceremonial summons that contains the phrase "God save the United States and this honorable court." In fact, given the use of the word "save," it is not unreasonable to consider it a Christian ceremonial statement.
Some facts about the case to give you the lay of the land. Just as in many other places, a town board governs Greece, New York. They have official meetings at which the town supervisor presides. Before 1999, the Pledge of Allegiance was recited followed by a moment of silence. But in 1999 the supervisor started to invite local clergy to offer a prayer to begin the meeting. There was some official notion made of the clergyman and the prayer and the "chaplain of the month" was thanked. Eventually, an employee of the town used a list of churches in the area from the chamber of commerce publication to invite the clergymen. There was an unofficial list of "Town Board Chaplains." The employee would basically go down the list until someone said okay. The list was exclusively Christian and through 2007 all chaplains who gave the invocation were Christian. Jesus was frequently mentioned and the audience was often included in the prayer as "we," indicating that they were included in addressing God. As this lawsuit was being considered, the town did occasionally have other clergy from other religions appear at a rate of one a year and there were specific references to non-Christian deities. There was never an official policy and the town officials insist that anyone - even a non-believer who wished to participate, would have been accommodated.

That did not in fact happen and the right for practitioners of other religions to lead the invocation was never generally made known to the public. Apparently one town officials said it in an interview, but that's it. The trial judge decided that the town's position, since it allowed other than Christians to participate, was constitutional. But the federal appeals court disagreed. They determined that legislative prayers were fine (as they have been for over 200 years) but that's the way the Town of Greece did it was not constitutional.

The Supreme Court took this case, but I doubt there will be a very definitive resolution. Based on the oral argument, Justice Scalia seems certain of his position, as he almost always does. Justice Thomas did not speak, which is his custom (I agree with him. Most of it is pageantry and there is little need for argument most cases, particularly now that all the reading material is available online. Though Thomas has been roasted for his silence, I heard the newest member, Justice Kagan recently state that oral argument is usually quite unimportant). One thing it does do is, usually, give us a first read on where most of the judges are going to end up. But, reading the oral argument transcript, the other judges seemed unsure of how to handle this situation.

It should be noted that one of the two plaintiffs is an atheist. She believes the only way to make the Town's practice truly constitutional is to do away with the prayer altogether. But, her co-plaintiff is a believer and just as the prayer be made more non-denominational. In arguing, plaintiffs declined to suggest a specific prayer they thought would be acceptable. Instead they indicated that there should be an announcement that there was a diverse group of beliefs, that the prayer can make reference to a supreme being, should be no reference to a specific deity or other denominational symbol, that there should be a time lapse between the prayer and any business and that no one should be asked to participate or any questions should be asked of the audience, such as when it was asked to them how many of them have been saved? Good God. That sounds to me like it would take longer than the prayer.

I have a much older friend, who, after going on a philosophical rampage likes to ended by looking up and asking, "So you ask-what is the answer? And it comes back - 'Schmuck!'" I'm not entirely sure what he means, but I think it is something about there not really being any answers. Enjoying both constitutional law and theology, I often find little difference in their interpretation. Experts in both fields seem to be more concerned with the result and any hyper-technical or logical approach. Some constitutional questions are simple, of course, such as-how old does the president have to be?  How do we elect a vice president? But obviously most questions are quite difficult and we find wide disagreement between both professionals and regular citizens.

What I can tell you with more certainty is that the Supreme Court is generally divided up among what are often called non-preferentialists, accommodationists and separationists. I can only generalize what these categories mean, of course, as with any political definition. Generally speaking, accommodationists believe that so long as the government itself does not establish a church, it can promote religion and give wide latitude for the religious beliefs of citizens to be part of the law. The non-preferentialist goes further and believes that government can promote and entangle itself with religion, so long as it does not favor any one group - which I would argue is impossible. Separationists generally believe that government should have no entanglement with religion at all, or, if at all, only in routine nondenominational and traditional matters, such as having the words "in God we Trust" on money. This is sometimes called "ceremonial deism."

Of course, all of these groups believe that the Constitution and the history of our country support their position. There are books on this and I'm sure many websites. Naturally, the First Amendment comes into play. Pertaining to religion, it is divided into two clauses, that unfortunately, do not blend seamlessly. It goes like this:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."

You can find, without a little effort, the history of how these words came to be. The amendments were proposed by James Madison, later a president, but then a member of the House of Representatives. This phrase, you may or may not be surprised to learn, did not spring full grown out of his head. The states had constitutions with various positions on religion, including his home state of Virginia and like statements of rights had been part of English law and American law. A number of people made suggestions which he considered. And, indeed, the actual language I quoted above is not the language Madison proposed. It was this, leaving out some legal verbiage:

 “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed”


“No state shall violate the equal rights of conscience . . . ."

Clearly Madison wanted an individual to be protected from the states as well built into the constitution. Put his two clauses together and you would get:

"“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.  No state shall violate the equal rights of conscience."

These were debated by a House committee which whittled it down, but made it broader:

"No religion shall be established by law, nor shall the equal rights of conscience be infringed. "

Another proposal was debated, and you can see the final language slowly coming into shape.

"Congress shall make no laws touching religion, or infringing the rights of conscience."

Notice now that it is clearly congress as opposed to a state which is proscribed.  And it is a more powerfully put - no power to make a law even “touching religion.”

Some days later they considered this:           

"Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."

Of course, even as it takes shape, none of it is clear - what exactly are the rights of conscience?     How does that differ from just free exercise? Thoughts? Speech? Non-religious belief? It went from the House of Representatives to the Senate like so:

"Congress shall make no law establishing Religion, or prohibiting the free Exercise thereof, nor shall the right of conscience be infringed."

The Senate scaled it back a bit:

"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."

Clearly, the non-establishment part is not as strong as the House's. Eventually, the Senate and the House negotiated it to our present first amendment, quoted above, though I left out the rest which speaks of speech, press and association rights.   

I take two things from this history. First, it is impossible to determine original intent or an original meaning of the text. There were two many candidates to know what congress was thinking. We do not know what was discussed by them or why they made the changes they did. What eventually passed was relatively expansive.  It abandons the idea of prohibiting just a national church and instead prohibits laws "respecting the establishment of " (i.e.,  more than prohibiting just "establishment") religion, though we know that has  been often honored in the breach. It also abandons language as to conscience (whatever that means) and gives religion a special place in our law.

The Court will almost certainly take what you could call an extra-textual short-cut in the Town of Greece case, as they have done in the past. After discussing a law that seems to violate the Constitution on its face, they often point out that we've been doing something for a long time - could be decades or even centuries.  In this case that something is legislative prayer. They will rarely change that without a complete societal change (such as with separate but equal). Thus, the real question they will determine will be - is the way they do it in the Town of Greece constitutional?   
It's my opinion, and that of many others, that the constitution has been so dragged through the thickets, and because of our system of precedents, the actual text can't really be applied in many respects anymore. Arguably, it never really worked that well outside of the very basics (that is, the simple questions I discussed earlier). Consider for example that most of the bill of rights is now applied against the states, though that is not what was written. Though I like the fact that the states are required to obey the bill of rights, or, at least that part of it deemed fundamental to our concept of ordered liberty, I really do not believe in the doctrine that these rights were meant to be applied to the states as a result of the word liberty in the 14th amendment. In fact, I would say this reading is a sham which developed and spread because that is what enough people and the judges who counted wanted, rather than the Constitution dictating it. Conservatives steadfastly and reasonably opposed it for many decades. Now however, since it has been recently applied to the second amendment, even they are on board with it.  So, if we forget the last 100+ years of rulings and just read the Constitution, the religion clauses would not apply against the states or their subdivisions, and people would have to rely on their own state constitutions, many of which contain religious freedom clauses that are not identical with the federal version. For example, New York's constitution has the following clause:

"The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state."

There is, you can see, no establishment clause in the New York constitution.  I'm sure you could make an argument that free exercise and enjoyment of religion includes someone giving an opening prayer before a town meeting in the manner they see fit.

Thus, I am left in a constitutional quandary. I really do not believe that the federal constitution we have protects minorities from state or local laws that establish religion. On the other hand, I think it should - I want it to.  Fortunately for me, the way the Constitution has been interpreted, it does apply against the states, but in such a way that it allows some minor entanglement of the government and religion - so long as it is non-denominational. There is nothing on the face of the Town of Greece's purported policies (if we can believe them) that makes it pro-Christian, but I think in practice, it will probably be deemed that it lends itself to that happening.

So, I will make a prediction for The Town of Greece. There will be at least 5 votes, including Kagan, Ginsburg, Breyer, Sotomayor and Kennedy, to strike down Greece's prayer at beginning of the meetings.  But, the town will merely be required to tweak their policy such that it is more inclusive of other religions, at least in theory. They will possibly have to have some written policy that affirmatively invites other voices than just Christians. Lists of Christian churches will not be sufficient. In other words, the town will be required to make its unofficial policy - official. Not much of a change.

Of course, it is very hard to see how that can work well in reality. What if, as is sometimes asked rhetorically, Satanists want to participate? Must the Town Board really suffer through an appeal to the Devil to open its meeting? Or a 99% Christian or Orthodox Jewish community suffer an atheist to give the benediction? What if they announce a party and no one shows up except Christians? Nothing will have changed. And, many will say, why should it? The invocation probably is, for the most part, a harmless ritual. I disagree in theory, believing that we can safely leave religion out of government and court completely, without suffering as a nation. Nothing stops religious people or groups from praying or celebrating their religion as much as they like outside of government. On the other hand, it probably is not much of a problem so long as anyone can in fact, get up and speak with a modern in words that are basically non-denominational. Naturally, that won't satisfy everyone, particularly those who want their religious views to be the favored ones. 

In the end, the Constitution really can't fix our problems except in establishing very basic rules that are never going to be perfect and can always be side-stepped and/or interpreted out of existence.  I have always been enamored by some words of a famous American judge, who is often cited by the Supreme Court - more than any other lower court judge - Justice Learned Hand. He   made  a speech during WWII and which was later printed in a book, The Spirit of Liberty (1944). There is a religious - Christian - aspect to it, which, is a little ironic given that Hand was privately agnostic. But, it is secular aspect of it that seems wise to me:

What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.

Playing off that - on one hand (no pun intended) I often credit the first amendment with being our country's greatest law and asset - because it has given a frame work that allows us to resolve our religious differences without resorting to self help or unilateral force. But, that in itself, without the spirit of our culture of which Hand wrote so eloquently, means nothing. John Adams wrote in a letter "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." It was difficult at the time to separate out moral from religious, though some few could. It is often nowadays just as difficult for many, though more are comfortable with accepting that morality can stem from other than religion. I hope so, for my sake.

But, obviously, many still disagree. They would perhaps more agree with James Madison - the other James Madison, the founder's  cousin, Bishop James Madison of the Episcopal Church, who gave a speech on a day of Thanksgiving (proclaimed/recommended by George Washington), which included these words -

"Fellow citizens, it is an easy task, For those who may have the honor of addressing an American audience this day,To point out the excellencies of our civil governments, to shew their superior aptitude for the promotion of political happiness, to evince that obedience to laws constitutionally enacted is the only means of preserving liberty, and that every expression of the public will is obligatory upon every citizen; to prove, that representative republics, instead of being the prolific parents of anarchy and confusion, are, on the contrary, of all the forms of government under which men have yet associated, either through compulsion or choice, the most promoted for private and public happiness,the most susceptible of that energy which is equally capable of curbing the licentiousness of the multitude or frustrating the wicked designs of the ambitious; it is easy for them to shew that virtue is the vital principle of the Republic, that unless a magnanimous spirit of patriotism animates every breasts, unless a sincere and ardent love for justice, for temperance, for prudence, for fortitude, in short, for all those qualities which dignified human nature, pervades, enlivens, invigorates the whole mass citizens, These fair superstructures of political wisdom must soon crumble into dust. Certainly my brother, It is a fundamental maxim that virtue is the sole of a republic."

This sounds much like the sentiment which Learned hand stated so much later in time. But, Bishop Madison goes on:

"But, zealous for the prosperity of my country,I will repeat, and in these days it is of infinite moment to insist,that without religion--I mean rational religion, the religion which our Savior himself delivered, not that of fanatics or inquisitors--chimeras and shadows are substantial things compared with that virtue, which those who reject the authority of religion would recommend to our practice. Ye, then, who love your country, if you expect to wish that real virtue and social happiness should be preserved among us or that genuine patriotism and a dignified obedience to law, instead of that spirit of disorganizing anarchy, and those false and hollow pretenses to patriotism, which are so pregnant with contentions, Insurrections, and misery, should be the distinguishing characteristics of Americans; or that the same almighty arm which hath yet protected your country, and conducted her to this day of glory, should still continue to shield and defend her, remember that your first and last duty is "to fear the Lord and to serve him"; remember that in the same portion as irreligion advances, virtue retires; remember that in her stead will succeed factions, ever ready to prostitute public good to the most nefarious private ends, whilst unbounded licentiousness and a total disregard to the sacred names of liberty and of patriotism will here once more realize that fatal catastrophe so many free states have already experienced. Remember, the law of the Almighty is, they shall expire, with their expiring virtue."

I do not know if Learned Hand would have quite agreed. But, I have no doubt that were a very old but cogent Bishop Madison and Justice Hand to be alive today, we could all sit down and have a very civil conversation, and disagree on few important things. Perhaps though, we would disagree on the necessity of values being transmitted through religion. And that, dear reader, is a topic for another day.



  1. Well the idea or precedent has always been rather stupid. You are correct that precedent has taken primacy over the text of the Constitution to the point where most decisions rarely ever quote the Constitution but, instead, extensively quote cases. The idea that we should adhere to bad decisions and bad law is destructive and undermines rational legal analysis. Part of the problem is also that courts are timid and always want to draw endless shades of gray in cases so as not to make clear cut and comprehensive decisions. This leads to further confusion and lack of clarity as judges try to shoehorn a case in front of them into a decision made previously. Bad decisions should be disregarded no matter how long their pedigree.

  2. Best as I can tell, the purpose of precedent is not to provide correctness, but a road map so that people can know what to expect and act accordingly. Of course, sometimes precedent is overturned and often it is questionably applied. But, generally, it.seems that the powers that be prefer predictability to correctness. I do agree with you that precedent should not trump the words or plain meaning of the Constitution. But in doing so -- were that the actual practice - we. would need some amendments pronto.

  3. Well I am definitely in favor of some amendments- pronto!

  4. I don't mean the ones that Mark Levin favors (and you told me you like). I mean that people from all political stripes like certain interpretations of the Constitution's text which just are not present or obviously implied. I used fundamental rights above as examples.


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About Me

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I started this blog in September, 2006. Mostly, it is where I can talk about things that interest me, which I otherwise don't get to do all that much, about some remarkable people who should not be forgotten, philosophy and theories (like Don Foster's on who wrote A Visit From St. Nicholas and my own on whether Santa is mostly derived from a Norse god) and analysis of issues that concern me. Often it is about books. I try to quote accurately and to say when I am paraphrasing (more and more). Sometimes I blow the first name of even very famous people, often entertainers. I'm much better at history, but once in a while I see I have written something I later learned was not true. Sometimes I fix them, sometimes not. My worst mistake was writing that Beethoven went blind, when he actually went deaf. Feel free to point out an error. I either leave in the mistake, or, if I clean it up, the comment pointing it out. From time to time I do clean up grammar in old posts as, over time I have become more conventional in my grammar, and I very often write these when I am falling asleep and just make dumb mistakes. It be nice to have an editor, but . . . .