In the years before conservative justices overtook the Supreme Court and, by doing so, the jurisprudence of the nation, Roe v. Wade was criticized as being less of a judicial decision and more of a legislative act--particularly in its trimester-by-trimester breakdown of a pregnant woman's right to terminate the pregnancy versus the fetus' interest in being born. Along came the conservative takeover of the Court and, along with in, Antonin Scalia's majority opinion in Heller v. District of Columbia, in which he effectively erased the Second Amendment's language regarding "a well-regulated Militia" to find a individual constitutional right to bear arms--to which he then appended, with no constitutional support, a right on the part of states to enact "reasonable" gun regulations. Among other less printable reactions to Heller, my thinking at the time was that, if Roe was legislation, Heller was nothing less than a constitutional amendment.
Sadly, the same has to be said of the Court's decision in Town of Greece v. Galloway, in which the Court essentially nullified the Establishment Clause of the First Amendment by sanctioning sectarian prayer by government officials at public meetings. Even worse than the decision's evisceration of precedent is its basis not on any form of legal reasoning, but on the view of several Justices (Anthony Kennedy in particular) that the town officials could "reasonably" conclude that prayer has a calming effect on their deliberations.
I would, in the first instance, suggest that several hundreds of years of historical evidence goes a very long way toward undermining the "reasonableness" of the view that prayer, and specifically Christian prayer, has a "calming" effect. (The Inquisition, anyone? For that matter, the Crusades? You get the idea.) I will cheerfully forgo doing so, however, in favor of a straightforward discussion of what the First Amendment does and does not permit, and why it was designed that way.
Our nation was founded by a variety of Christian denominations, with Catholics predominating in the South and Protestant groups in the North. Mixed in with that were a variety of other theological viewpoints, including Deism (believing in God but not in a specific doctrine). While a general belief in God in some form was common, there was also a general understanding that God's will and purposes were not viewed or understood in the same way by everyone. There was also a genuine concern, based on the European experience, that it was always possible for one sect to gain enough power to impose its will on everyone else, thereby undermining the freedom that many had sought in the New World to begin with.
Hence, the dual nature of the First Amendment's language on the subject of religion. The Establishment Clause was intended to prevent government from endorsing and enforcing the practices of a particular faith. The Free Exercise Clause was intended to protect the practicing of all faiths by private individuals. And how should the First Amendment's words on religion be construed in a situation such as the one in Town of Greece v. Galloway? Very simply. The public officials have a right to pray, individually and even as a group, outside of a public meeting. The other people present have a right to pray in the same manner. Neither group has the right to use public resources (such as a town meeting) to indicate preferential treatment toward any religion, or even toward religion itself. Any freedom is a two-sided coin: the right to exercise it or the right to not do so. It is the individual's choice.
That is why this is the legal bottom line for the facts in this case: no one--no one--in a government setting should ever be forced to pray, or to join in a particular form or religious worship. The freedom to dissent from doing so is inviolable, constitutionally speaking. Town of Greece v. Galloway fails to understand, or even reference, this basic right. By doing so, the decision paves the way for an official Christianity that the Framers had intended to avoid at all costs.
God only knows what this Court will try to amend next. Let's hope that He, She, It or They gives us the grace to fight it and win.
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