Thursday, November 7, 2013

Endorsement v Coercion & The Town of Greece (NY) v Galloway

Most casual Supreme Court watchers tune in every June to hear how the highest court in the land rules on the landmark cases.  The arguments for these cases take place in the fall and it is one such case that has piqued my interest on both content and personal grounds: Town of Greece (NY) v Galloway.  According to SCOTUSBlog, the issue is Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity, but what makes this one personal is I lived in Greece for many years and still spend significant time there. 

Firstly, Greece, NY is a typical northeastern suburban town.  Mostly white, moderate to conservative, predominantly Christian, 24 of the 26 houses of worship fall within the realm of Christianity, with the typical landscape of fast food, pizza places, chain restaurants, strip malls, neighborhoods, and local bars where everybody does know your name.  And unlike the media reporting, it is not a small quaint town, it is big town of over 90,000 residents.  This is neither hard core red state evangelical country nor liberal granola eating tree hugger country.

The background, courtesy of Pew Research Religion and Public Life Project: Since 1999, the Greece town board has opened its monthly sessions with a prayer. In 2007, Susan Galloway, who is Jewish, and Linda Stephens, who is atheist, complained that the prayers “aligned the town with Christianity.” As non-Christians, they said they felt both coerced to participate and isolated during the ceremony. The board responded that anyone (regardless of faith tradition or beliefs) could volunteer to recite a prayer and the town was not trying to exclude anyone, as a result, the meetings have begun with Christian, Jewish, Baha'i, and Wiccan invocations.

Over the last five years, the case has made its way through federal court, district court, the 2nd U.S. Circuit Court of Appeals, and now the U.S. Supreme Court.  And while I am no lawyer, constitutional or otherwise, I did take a Business Law class, watched a lot of L.A. Law, and slept in Holiday Inn Express.  Joking aside, First Amendment cases have always intrigued me, especially those involving the Establishment Clause and the lesser known Endorsement Test, and when you mix in the politics of the now, you have a potentially groundbreaking case.

The case law is extensive and various court opinions are intriguing.  If you want to learn more, I suggest Lemon v. Kurtzman (1971) source of the aptly named Lemon test, Lynch v Donnelly (1984), especially Sandra Day O’Connor’s opinion which created the Endorsement test, and the more recent Justice Kennedy’s Coercion test from Allegheny County v ACLU.

What’s my take?

I am a staunch supporter of the 1st Amendment in both the protection of free speech and the prohibition of an established religion.  I believe prayer has no place in public schools, and I have no problem with nativity scenes.  I know the original Pledge of Allegiance did not include “under God”, and it was modified about the same time “In God We Trust” became our national motto; it was the 1950’s and we had a new enemy, the godless Soviet heathens.  I sang the Christmas Carols, much to the chagrin of my classmates who had to hear me, in elementary school while I was going to Hebrew School.  You don’t have to share my beliefs to be my friend, and your beliefs are not a prerequisite to friendship.  I am bothered by the preoccupation with our elected officials’ beliefs, and does the President really need to end every speech with “God Bless America”?  I know politics leads to a lot of arguments, and when you throw in religion, families and friendships can be torn asunder. Trying to include all seems like a good idea and is often seen at as a compromise, but rarely solves problems.  Merry Christmas doesn’t bother me, and an Islamic Center in New York City shouldn’t bother you. Religion has its place in the public square, just not in public policy.

What’s the big deal?  Congress has two chaplains and sessions include prayers.  By opening the meeting to all invocations isn’t the Town of Greece doing the opposite of establishing A religion?  Does the Establishment Clause prevent the selection of one religion over another AND the use of any religion over no religion?   People have places of worship where they can practice their faith, should legal proceedings include a religious element? Legally, this may come down to the Endorsement test vs. the Coercion test.

Politically speaking, those on the left will back Galloway and Stephens and those on the right will back the town.  Hannity and O’Reilly will call this the continued war on Christmas, David Barton will claim we are a Christian Nation, Bill Maher will ask why is a prayer even necessary, and whatever side loses will call these jurists activist judges.  Justice isn’t blind, it’s political.

My take?  I would feel a lot more comfortable if religious invocations were not part of the governmental process.  We seemed to do just fine before we had to tell the world “In God We Trust.”


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