Washington Post columnist George Will dedicated his most recent column to bashing citizens uncomfortable with forced participation in Christian prayer before they can petition town officials, characterizing both the Jewish and atheist plaintiff in the Supreme Court's recent decision on the constitutionality of state-sponsored prayer as "flimsy people" with "thin skins."
The suit, Town of Greece v. Galloway, was filed by two residents of Greece -- a small town in upstate New York -- who objected to their town officials' decade-long practice of inviting almost exclusively Christian clergy to deliver at times extremely sectarian prayers before the start of town meetings. On May 6, the Supreme Court's conservative justices held that the Christian prayer regularly invoked at town meetings before residents could engage their local officials in town business did not violate the Establishment Clause of the First Amendment. In the majority's view, the prayers were appropriate because "although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town's congregations." In their dissent, the liberal justices noted that although "legislative prayers" have been held to be a ceremonial exception to the First Amendment's prohibition on the establishment of religion, the Town of Greece crossed the constitutional line by embedding Christian prayers as the bar citizens must cross before they can engage their representatives.
In his Washington Post column, Will celebrated the majority's reinterpretation of what constitutes permissible "legislative prayers." He also took the opportunity to gratuitously slam the "prickly plaintiffs" for bringing the case at all, falsely pretending the concerns of religious minorities are the same as those of "militantly aggravated secularists."
From Will's May 7 column (emphasis added):
Three decades have passed since the court last ruled on the matter of prayers during government meetings. In 1983, the court held:
"The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom."
Since then, however, many Americans have become more irritable and litigious and less neighborly. Also, there are many more nonbelievers. And the court has made establishment-clause jurisprudence more labyrinthine with nuances such as the "endorsement test": What government behavior touching religion would a reasonable observer see as endorsing -- or disapproving -- a particular religion or religiosity generally?
The majority held that ceremonial prayer -- an encouragement to gravity and sobriety -- is not harmful to the plaintiffs, who felt somehow coerced when present at public prayers, and who said such prayers are necessarily divisive. The court should have told them: If you feel coerced, you are flimsy people, and it is a choice -- an unattractive one -- to feel divided from your neighbors by their affection for brief and mild occasional expressions of religiosity.
Taking offense has become America's national pastime; being theatrically offended supposedly signifies the exquisitely refined moral delicacy of people who feel entitled to pass through life without encountering ideas or practices that annoy them. As the number of nonbelievers grows -- about 20 percent of Americans are religiously unaffiliated, as are one-third of adults under the age of 30 -- so does the itch to litigate believers into submission to secular sensibilities.
Will pointedly ignores the fact that one of the plaintiffs was not part of the "nonbelievers" with an "itch to litigate believers into submission" -- she was Jewish. In fact, as Justice Elena Kagan's dissent pointed out, this was really a case about the exclusion of religious minorities from local governmental proceedings through a state's sponsorship of the dominant religion, not the "moral delicacy" of nonbelievers. A state's recognition of religious diversity in its "legislative prayers" ensures that what is unconstitutional toward non-Christians today will remain unconstitutional toward Christians tomorrow.
These "brief and mild occasional expressions of religiosity," as Will calls them, were actually part of a long-standing town tradition of preference toward one religion. In addition to the sectarian prayers, which occurred every month at every town meeting for ten years, "board members would regularly stand, bow their heads and make the sign of the cross," according to Will's Washington Post colleague Ruth Marcus. The clergy member selected to give the Christian prayer often faced the citizens in attendance at the meetings, speaking the prayer at them as if "directing their congregations." The prayer concluded with everyone saying "Amen" before citizens in attendance could participate in the proceedings.
The town eventually did briefly call on non-Christians to come to its meetings to deliver a prayer, as Will notes, but only after the plaintiffs filed their lawsuit, which Will conveniently ignores.
Will went on to claim that the Court "prudently avoided the potentially endless task of adumbrating criteria by which" a town like Greece might determine which prayers are constitutional and which are not -- except he misrepresented that, too. Writing for the majority, Justice Anthony Kennedy did shy at having the court determine what prayers were too sectarian, but he nevertheless held that "a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose" could be found to be unconstitutional coercion by a future court.
As far as Will is concerned, however, the religious beliefs of a faithful minority, like the plaintiffs in Town of Greece, are invisible, and any concerns they might have are trivial in the face of the religious preferences of the Christian majority in the Town of Greece. But to condemn this Jewish plaintiff -- or the atheist plaintiff, or anyone that does not subscribe to evangelical Christianity -- as "prickly," "theatrically offended," and worse yet, one of a "flimsy people," rejects the "rich mosaic of religious faiths" that exists in this country. From Kagan's dissent, which explained why the town's repeated and almost exclusive invocation of Jesus Christ before its citizens could participate in public proceedings sets a dangerous precedent:
[T]he not-so-implicit message of the majority's opinion -- "What's the big deal, anyway?" -- is mistaken. The content of Greece's prayers is a big deal, to Christians and non-Christians alike. A person's response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity -- who that person is and how she faces the world. And the responses of different individuals, in Greece and across this country, of course vary. Contrary to the majority's apparent view, such sectarian prayers are not "part of our expressive idiom" or "part of our heritage and tradition," assuming the word "our" refers to all Americans. They express beliefs that are fundamental to some, foreign to others -- and because that is so they carry the ever-present potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the "religiously based divisiveness that the Establishment Clause seeks to avoid." I would treat more seriously the multiplicity of Americans' religious commitments, along with the challenge they can pose to the project -- the distinctively American project -- of creating one from the many, and governing all as united.
"The Supreme Court failed the empathy test," wrote yet another Washington Post columnist, E.J. Dionne. So too, apparently, did his colleague George Will.