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DIAZ: Acceptance of a public God by the high court

Prayers don’t need to be generic to be constitutional

- - Wednesday, May 14, 2014

The recent Supreme Court decision on legislative prayer (Town of Greece v. Galloway) was not really about the right to pray, but about the content of our prayers. The court rightfully concluded the government has no place in directing the content of a person's prayer. This was a 5-4 decision, though, and that is concerning. Should the dissenters have gotten their way, government would have the duty to police the content of every legislative prayer to ensure its "inclusiveness" and especially that no one's feelings are hurt.

The town of Greece, N,Y., would invite a local minister to come pray before town meetings. Most of the prayers were Christian, because most of the churches in town were Christian.

"The town at no point excluded or denied an opportunity to a would-be prayer giver. Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of ministers," said the ruling. That is the proper way of approaching the issue, but that was not enough for liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor.

For them, the problem was Christian ministers praying "in the name of Jesus." Justice Kagan, in dissent, says "God" is OK: "But prayers evoking 'the saving sacrifice of Jesus Christ on the cross,' 'the plan of redemption that is fulfilled in Jesus Christ' and the belief that God 'has raised up the Lord Jesus' and 'will raise us, in our turn, and put us by His side'?"

The argument fell right in line with the request by those who brought the lawsuit. "They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumenical' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief." They wanted the court to define an acceptable "public god," and the dissenters agreed.

Justice Kagan wrote, "The content of Greece's prayers is a big deal." "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."

However, the majority points out, "That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society." One need only read the first prayer at the Continental Congress in 1774, concluding, "All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Saviour, Amen," to see that Justice Kagan's passionate desire falls way short of reality.

If the dissent is not able to define a "public God," then they argue for affirmative action for all minority religions. They complain that though "the Board 'maintains a policy of nondiscrimination,' and 'represent[s] that it would welcome a prayer by any minister or layman who [wishes] to give one,'" they are still in violation because "that representation has never been publicized." Apparently, they should reach to other counties — or perhaps countries — to ensure full "inclusion."

Ultimately, it won't be enough. Here is the example Justice Kagan uses:

"Let's say that a Muslim citizen of Greece goes before the Board ... . But just before she gets to say her piece, a minister asks her to pray 'in the name of God's only son Jesus Christ' . She must think — it is hardly paranoia, but only the truth — that Christian worship has become entwined with local governance . And she thus stands at a remove, based solely on religion ."

Having another minister pray differently next month doesn't help this "victim." It's really about content.

The dissenters want the court to assume nefarious motives to organized religion and to Christianity in particular. This is a dangerous view that promote distrust in our citizenry. It asks every citizen to presume those who are not like them are not to be trusted.

There was no evidence, and the dissent does not argue, that there was any ill intent on the town's part. All they have is hurt feelings. Justice Anthony M. Kennedy was right in replying, "Offense, however, does not equate to coercion."

Concerned Women for America's brief said it this way: "Verbal or symbolic 'endorsements' of religion in public affairs surely cannot be said to impact individual liberty in a constitutional sense; they do no more than potentially impact feelings, or thoughts, which are no proper subject of constitutions nor the courts charged with interpreting and applying them. Those who settled this country and gave birth to the First Amendment did not flee their former homes to seek solace from hurt feelings, but from true religious bondage in the form of legal compulsion to support government-favored churches."

We're glad to see the court made the distinction.

Mario Diaz is legal counsel for Concerned Women for America.