Editorial: Supreme Court got it wrong in prayer case
Last week, the United States Supreme Court ruled, 5-4, that town boards in Greece, N.Y., did not violate the First Amendment’s Establishment Clause by opening meetings with a sectarian prayer.
In the court’s majority opinion, Justice Anthony Kennedy wrote, “Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause.”
He also wrote that there is historical precedent for “the practice of opening local legislative meetings with prayer.” Kennedy is right about the national tradition, which he punctuated by referring to the fact that the first Congress voted in favor of an official chaplain shortly after approving the language of the First Amendment.
The problem with Kennedy’s opinion is his refusal to recognize the fundamental difference between a meeting of elected officials in a legislature and a board meeting during which residents often ask their local leaders to act on matters of direct personal consequence.
In New Hampshire, you can picture it this way: A Muslim woman is one of three residents in attendance at a zoning board meeting, where she will ask officials to approve an in-law apartment for her elderly mother. At the beginning of the meeting, everybody is asked to stand during a Christian prayer celebrating Jesus Christ, the only son of God. Her choices are to remain seated, which will surely be noticed, or stand for the prayer despite her strong personal faith.
In writing the dissenting opinion, Justice Elena Kagan imagined just such a scenario.
“I respectfully dissent from the Court’s opinion,” Kagan wrote, “because I think the town of Greece’s prayer practices violate that norm of religious equality – the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”
Kagan’s sensible argument is that the Constitution guarantees that every man and woman has an equal share in the government, and that guarantee is undermined in Greece, N.Y., because the prayers were almost exclusively of the Christian faith.
“I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone,” Kagan wrote.
The spirit of Kagan’s dissent is fundamental to the guarantees of the Constitution. When a town government presents the appearance of possessing an official faith, it risks marginalizing those of other faiths.
Despite the court’s view that Greece, N.Y., did not violate the First Amendment’s Establishment Clause, towns in New Hampshire and elsewhere would be wise to focus not on the constitutionality of prayer at board meetings but on making each and every resident feel that he or she has equal standing.