‘Twas a Famous Victory

Let us imagine that, in a spirit of “diversity unbounded,” we established a celebration of religion in this form: two days a week we might pray to the God of Israel, or receive the Eucharist of the Lord who died on the Cross, while on other days we burned incense to local divinities, invited in animists to sacrifice chickens, and Wiccans to cast their spells of the season. Could this scheme be represented to the world as a civic ritual manifesting our “respect” for “religion”?  

Or would it be quite the opposite? Would the whole spectacle be grounded on the premise that these devotions could be equally “respected” because none of them could be truer, with a higher claim to our respect and adherence, than any of the others? Which is to say, the whole project begins by refusing to respect the way in which these devotions and teachings have been understood, and found compelling, by those who hold to them.

To grasp that point is to grasp what a strange “victory” the religious managed to secure at the Supreme Court two weeks ago in the case of Town of Greece (NY) v. Galloway. The town, in upstate New York, began in 1999 to ask local clergyman to give an invocation before the monthly meetings of the town board. Most of the local clergymen happened to be Christian, though the board has been ecumenical in its invitations. The predictable complaint arose that the prayers “established” a Christian definition for the town, that they were “imposed” even on those in attendance who did not share them.

Over the last fifty years, the Establishment Clause of the First Amendment has been inverted from its original purpose and used as a lever to push religion out of the public square altogether. But in the most curious counterpoint to this trend, the Supreme Court has sustained the tradition of legislative chaplains and prayers in legislatures. As Justice Kennedy noted, the First Congress moved to appoint chaplains only days after approving the language for the First Amendment.

For those who are willing to be guided by claims of “original meaning,” that move established at least that the people who framed the First Amendment did not see anything in that Amendment that barred chaplains and prayers in legislative assemblies. And thirty years ago the Court had rejected a challenge to legislative chaplains in the States.

But if it could be claimed now that there was something unconstitutional even in these lingering vestiges of religion, another gentle barrier would be swept away, and there would no limit to the purging of religion from our public life.

        First Prayer of [the Continental] Congress by H.T. Matteson, 1848

Some of us felt an obligation then to contribute to the briefs in the case, and we were both relieved and astonished by the outcome. On the one hand, relieved, that the Court did not overthrow the tradition of prayers in legislatures, and even better than that, immensely pleased that the Court was willing to sustain prayers with a definite character. Christian prayers could still be Christian prayers, invoking the Holy Trinity. They did not have to be submerged in vague “non-sectarian” prayers offered merely to the “divine.” 

On the other hand, we could be astonished and sobered by the fact that the outcome hung by a thread: four justices of the Court were willing to throw out legislative prayers if the search for clergymen were not more ecumenical, seeking out a fuller diversity of religious persuasions or near-persuasions.

And yet, how much fuller could the town have been in the range of “religions” that it was willing to encompass? As Justice Kennedy noted, “the town at no point excluded or denied an opportunity to a would-be prayer giver. . . .[A] minister or layperson of any persuasion, including an atheist, could give the invocation.” A Wiccan priestess who had read about the case quickly tested the waters by offering her services – and they were accepted.

And so what exactly has been won here? The Supreme Court “vindicated” the place of “religion” in the republic only by sustaining a policy that incorporated, in the understanding of religion, a-theism, or the notion of being “without God or gods.”  But this incoherence has become one of the defining features of jurisprudence in our lifetimes.

The conservatives on the Court have been willing to sustain religion in legislative assemblies solely on the ground that the chaplains and prayers have been accepted from the beginning. The conservatives invoke history or “tradition.”  But the flaw in that stance is that the judges divert themselves from the task of explaining, even to themselves, what makes “religion” a good to be preserved and defended in our public life.

Justice Kennedy suggested that prayers may “lend gravity” to the occasion and encourage people to reflect on “shared ideal and common ends.” But those qualities could be supplied by baseball or the arts, as millions come to venerate the grace of Joe DiMaggio or Luciano Pavarotti. Justice Kennedy finds in these rituals “acknowledgements of the divine in our public institution.” Except: that the decision entails no fixed meaning of the “divine,” and it may encompass a materialist view that radically rejects anything divine.

And so, the win in Town of Greece recalls the old joke about the airline pilot who gives to the passengers the bad news and the good: We have lost our flight plan, but on the other hand, we’re making good time.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.