Town of Greece symposium: Can government actively favor a religious practice?

Carl H. Esbeck is the R.B. Price Distinguished Professor and the Isabelle Wade & Paul C. Lyda Professor of Law at the University of Missouri School of Law.

Can government knowingly take sides in a matter of religious belief or practice?  More to the point, can government actively support a practice that is explicitly religious, such as prayer?  This is the issue in Town of Greece v. Galloway as it ought to be framed.

Quoting with approval from Marsh v. Chambers, the Town’s main brief states that the purpose of legislative prayer is “[t]o invoke Divine guidance on a public body entrusted with making the laws.”  The practice not only calls upon a God or gods, but to a Divinity interested and active in human affairs.  Why else invoke guidance?  This act of prayer is thus consistent with some religions but not others.  Deists, for example, believe in an impersonal God.  A policy of legislative prayer is doubtlessly taking a side, and no phony pluralism dressed up as “nonsectarian” prayer – a vague theism not actually practiced by anyone – can cover up that fact.

The Town points to there being no evidence of religious coercion.  So what?  The rule against taking sides applies even in the absence of there being coercion of conscience.  In the Supreme Court’s school prayercases decided in the early 1960s, students were free to opt out of the exercise.  The absence of coercion, however, did not prevent striking down the prayer.

The Town also cites lack of evidence that clergy invited to pray were handpicked in a manner to favor Christianity.  Again, so what?  The taking-sides rule applies even when there is no intentional discrimination among religions.  We saw this in Lee v. Weisman, where the graduation prayer was rotated among willing clergy in the community without school authorities imposing any religion preference.  Still the prayer was unconstitutional.

The question presented is not whether the policy favored the religion of those invited to pray, but that legislative prayer knowingly favors the religious practice of invoking the guidance of a superintending God.

So what’s the harm in that?  Well, the principle being violated is that religious societies should be funded or otherwise supported through the voluntary contributions of those who find refreshment in the religion’s teachings, observances, and outreach.  As Justice Brennan wrote in McDaniel v. Paty, “Fundamental to the conception of religious liberty protected by the Religion Clauses is the idea that religious liberties are a matter of voluntary choice by individuals and their associations, and each sect is entitled to flourish according to the zeal of its adherents and the appeal of its dogma.”

Though at times overly involved with verbal formulae that proved of little utility, such as three prongs in Lemon v. Kurtzman and the endorsement test, at its better moments the Supreme Court has proceeded as if what keeps religion free is that it is voluntary.  Justice Kennedy, writing for the Court in Weisman, recognized that limiting government power over religion was a necessary consequence of casting religion upon its own resources:

The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.  It must not be forgotten then, that . . . these same Clauses exist to protect religion from government interference.

The Establishment Clause’s role in preventing harm to government and harm to religion was explained in the school prayer case of Engel v. Vitale:  “Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.”  A similar formulation by Justice Souter, writing in Rosenberger v. Rector & Visitors, was that “the dual objectives of the Establishment Clause [are] … to protect … republics from the destructive consequences of mixing government and religion [and] … to protect religion from a corrupting dependence on support from the Government.”

Of these two harms, the one most obviously applicable to Town of Greece v. Galloway is protecting deliberative government.  This harm was voiced emphatically in Lemon:  “[P]olitical division along religious lines was one of the principal evils against which the First Amendment was intended to protect.  The potential divisiveness of such conflict is a threat to the normal political process.”  Similarly, in the recent Ten Commandment cases, Justice Breyer said the aim was “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.”

But what does it mean that certain rules concerning church-state relations must be kept or harm will befall the political process?  It cannot mean that the object of concern is to preserve government qua government.  After all, the Bill of Rights was adopted to protect civil society from government, not to protect the government.  Moreover, what passes for “political division along religious lines” describes a form of speech protected by the Free Speech Clause, thus divisiveness without more cannot possibly be a harm prevented by the Establishment Clause.

The divisiveness within the body politic that is a proper concern starts when government takes sides in favor of an explicitly religious practice.  Political struggle will likely ensue to seize control of the machinery of government.  The purpose for which factions seek control is that the one in power decides the question of continued favoritism of the religious practice.  The solution, however, is not to suppress the political struggle which is protected free speech.  The solution is to fix the cause of the divisiveness, namely for the courts to start enforcing the taking-sides rule.

Political divisiveness is thus not itself a violation of the Establishment Clause.  But it’s a warning sign that the taking-sides rule has gone neglected.  Of course, divisiveness within the larger civil society will continue.  That’s just pluralism.  What will subside is the struggle to seize the levers of power with the aim of controlling whether government continues to take sides in favor of a religious practice.

It will strike some as alarmist that a religio-political struggle to control the instruments of government could tear a republic apart.  That is unlikely in America, but there are ongoing examples elsewhere in our world.  As Justice O’Connor wrote in the Ten Commandment cases: “At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate . . . .  Why would we trade a system that has served us so well for one that has served others so poorly?”

The Court identified a second type of harm, namely that when religion is not voluntary it is vulnerable to corruption.  Just how is religion corrupted when government favors a religious practice?  Isn’t it the reverse?  Well, no.  It turns out that corruption takes different forms, but it comes down to the favored religion becoming compromised or co-opted by government.

In Greece, N.Y., religion prays at the suffrage of the Town Board.  The Board, in turn, sought to invoke God’s guidance.  But that’s not what the Board got.  It instead got an invocation open to all willing locals, including Wiccans and atheists, who, because the Board could not be censorious prayer police, were permitted to say (pray?) whatever they wanted.  How did things go so far astray?  Presumably because the Board was following advice of legal counsel to “do prayer” federal judges would uphold.  In the end, religion was corrupted.  That was preventable by a government attentive to Establishment Clause dos and don’ts.

Conditions imposed by the Town’s policy make captive the practice of prayer.  Even when the policy’s conditions are few, religion cannot help but become tepid in its countervailing witness to the ways of the Board lest the franchise be withdrawn.  Just last year Justice Alito reminded us “that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws.”  The corruption is a loss of religion’s role as prophetic witness, for religion is less likely to criticize officials from which it receives succor.

A related corruption is civil religion, the conflating of piety with patriotism.  Civil religion is the confusion of religious faith with one’s love of country, an elevation of certain ceremonies, traditions, and habits of a nation to the level of the sacred.  In Weisman, Justice Kennedy for the Court noted its false allure.  After acknowledging the attempt by school officials to advance a “common ground” prayer, he said the Court’s precedents “caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses . . . which is that all creeds must be tolerated and none favored.  The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.”

Ultimately religion does not exist to sustain the political order.  It’s not a program for municipal improvement or to bless those who take up civic duties.  When government uses religion as a tool to achieve its political goals, the danger to religion is that it becomes a courtier in the halls of State.