Should Coercion Be The Standard To Challenge Sectarian Prayer?

Jason Pitzl-Waters —  August 7, 2013 — 40 Comments

The U.S. Supreme Court’s upcoming ruling in Town of Greece v. Galloway could have far-reaching affects on prayers and invocations made before government and state-sponsored events. At its heart is the question of government endorsement of a particular faith, and whether sectarian prayers overwhelmingly weighted towards one faith can be made so long as a fig-leaf of neutrality is maintained in written policy. I have written about this case before, and how modern Pagans have been deeply intertwined with the development of the “model invocation policy” being challenged and with this case itself.

“In just a few seconds’ time during the April Town Board meeting, Jennifer Zarpentine made Greece history. Zarpentine, a Wiccan, delivered the first-ever pagan prayer to open a meeting of the Greece Town Board. Her hands raised to the sky, she called upon Greek deities Athena and Apollo to ‘help the board make the right informed decisions for the benefit and greater good of the community.’ A small cadre of her friends and coven members in the audience chimed in ‘so mote it be.’”

Senator Marco Rubio

Senator Marco Rubio

Now, with the case on the Supreme Court docket, “friend of the court” briefings have been trickling in, most notably from a bi-partisan group of United States Senators (over 30 Republicans and one Democrat), and from a coalition of states lead by the Attorney Generals of Indiana and Texas. The first, spearheaded by Marco Rubio, seems to argue that the Supreme Court upholding (or expanding on) the Court of Appeals verdict in this case could eliminate the Establishment Clause carve-out for a paid government chaplains (as established in Marsh v. Chambers).

“This Court should eliminate the uncertainty and affirm the strong constitutional footing on which legislative prayer stands. In a nation of broad religious diversity, the best means of ensuring that the government does not prefer any particular religious view in the context of legislative prayer is to allow all those who pray to do so in accordance with their own consciences and in the language of their own faiths.”

In essence, Rubio and the other senators are playing the religious freedom card, hand-waving away the fact that Greece’s “neutral” policy “virtually ensured a Christian viewpoint” according to the appeals court judges. However, even more problematic is the brief submitted by 23 states, which not only argues that sectarian prayers before government meetings to be upheld, but raises the bar in terms of challenging prayer policies.

“The amici States urge the Court to re-affirm the central holding of Marsh v. Chambers, 463 U.S. 783, 792 (1983), that legislative prayers are permissible as “simply a tolerable acknowledgment of beliefs widely held among the people of this country,” and to disclaim any role for the so-called endorsement test when it comes to analyzing legislative prayer practices. The Court should also consider using this case as an opportunity to clarify Establishment Clause doctrine more generally by requiring a showing of religious coercion as a touchstone for proving any type of unlawful religious establishment.

In other words, government-sponsored prayers should not only have an Establishment Clause carve-out, individuals should have to prove “religious coercion” in order to bring an establishment of religion challenge against a government body. Such a high bar would throw current precedent on Establishment Clause challenges into chaos. It would also mean that rather famous cases involving Pagans, like Darla Kaye Wynne’s successful struggle against the town of Great Falls, South Carolina, would most likely have been thrown out. Because how, exactly, does a religious minority prove coercion in a town dominated by Christians set on praising Christ before every function?

Justice Brennan

Justice Brennan

Marsh v. Chambers, a SCOTUS decision which both the States and Rubio’s coalition places front-and-center in their amicus briefs to argue the Establishment Clause does not apply to government-sponsored prayer, featured a telling dissent by Justice William J. Brennan and Justice Thurgood Marshall that spoke directly to the question of coercion.

“The “primary effect” of legislative prayer is also clearly religious. As we said in the context of officially sponsored prayers in the public schools, “prescribing a particular form of religious worship,” even if the individuals involved have the choice not to participate, places “indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion. . . .” Engel v. Vitale, 370 U.S. 421, 431 (1962). More importantly, invocations in Nebraska’s legislative halls explicitly link religious belief and observance to the power and prestige of the State.

In short, the coercion is already happening, but it is being ignored in the name of tradition. These State Attorney Generals, and Senators, and conservative Christian organizations like the Family Research Council, and the Liberty Institute want desperately for that coercion to continue, and indeed, for it to be trumpeted as “freedom.”

“Courts that impose religious “neutrality” categorically exclude certain religions that require the use of those prohibited terms and violate the mandate of the Establishment Clause that all persons be treated equally by the government, regardless of religious creed.”

In short, making Christians not say “Jesus” before government assemblies and functions hinders their freedom. Somehow.

As I’ve noted before, the outcome of this verdict will likely decide the fate of opening invocations before government meetings. Will the “model invocation policy” used by Greece (and several other towns) be allowed to stand? If so, we can look forward to a huge groundswell of sectarian Christian prayer being instituted across large chunks of the United States. After all, this model policy clearly states that public bodies are “not required to extend any extraordinary efforts to include particular minority faiths” and  “no apology is necessary for the demographics of the community that the public body serves.” This could be a chilling roll-back of advances by religious minorities, and those who hold no religious affiliation at all.

Rev. Kevin Kisler prays prior to the start of a Greece, N.Y., Town Board meeting in 2008. Photo: Rochester Democrat and Chronicle

Rev. Kevin Kisler prays prior to the start of a Greece, N.Y., Town Board meeting in 2008. Photo: Rochester Democrat and Chronicle

I’m hoping that the Supreme Court is prudent here, and commits no drastic change to our understandings of the Establishment Clause, though I’m less optimistic since their Voting Rights Act decision. Recent rulings in the 2nd and 4th Courts of Appeals should be respected, and their understanding of how invocations slanted towards the largest demographic can create the appearance of establishment (and coercion) listened to. The current Supreme Court is made up of Roman Catholics and Jews, two religions that once fought very hard against the unthinking privilege of the Protestant Christian majority. Now, there is a chance to make the United States a truly pluralistic nation, not one that claims to be pluralistic, but looks the other way in the name of tradition.

Whatever happens, modern Pagans, and all religious minorities, should pay very close attention to Town of Greece v. Galloway.

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Jason Pitzl-Waters

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  • http://enondragonart.com/ Kelly NicDruegan

    “…“friend of the court” briefings have been trickling in, most notably from a bi-partisan group of United States Senators (over 30 Republicans and one Democrat), and from a coalition of states lead by the Attorney Generals of Indiana and Texas.”

    THIRTY Republicans and ONE token Democrat hardly seems “bipartisan,” any more than allowing a single Wiccan in a sea of Christian pastors to offer the opening benediction ONCE makes opening prayers nonsectarian. That’s like saying “See we’re not racist, we have a Jew!”

    And unless things have drastically changed since I was a kid growing up there, Indiana joining forces with Texas on this is like the United Klans of America joining forces with the Aryan Nations to claim they are not “racists,” they just happen to think that WASPs are superior.

  • cernowain greenman

    I think one of the issues here is where a prayer is proselytizing or not. Some of the Christians who pray feel the need to add some coercion in their prayer so that non-Christians feel uneasy. It seems this is the problem with the “model” approach. It doesn’t go far enough to address the lack of neutrality when these prayers turn into miniature revivals.

    Even if the court rules that there should be no coercion in these prayers I do not know just how it can enforced, except for more lawsuits. I don’t know if the evangelical preachers will ever accept the idea that they can pray before the city council meeting, but not use the prayer as an opportunity to evangelize.

    • Ambermoone

      I agree with that. I recall going on a retreat with my martial arts school and having the national head of the entire style have attendants get on their knees where he personally led a prayer praising, “Jesus, the one and only God”. I can’t even describe the look my husband and I gave one another. If that isn’t coercion…

      • Nick Ritter

        What style was this, if you don’t mind my asking?

        • cernowain greenman

          Look in the article and find the link “model invocation policy”. I think that’s what you referring to.

          • Nick Ritter

            I was actually asking which style of martial arts had a national head that required Christian prayer at a martial arts retreat. The intersection of martial arts and religion is interesting to me.

          • Deborah Bender

            My guess would be something from Korea.

          • Nick Ritter

            Possibly, but not necessarily; the Christian element could be something to do with the American who heads the martial arts style nationally rather than an import from its place of origin. It would be interesting to find out.

          • TadhgMor

            That sounds very odd, though I began in Japanese styles that had some pagan undertones (that were sort of taught in rote, but nonetheless it involved a sea goddess). But it was more of a historical-cultural thing than actual religion.

          • Nick Ritter

            The Aikidojo I practice at begins class with a simple ritual invocation to the kami: something that is glossed over for new students in our predominantly Lutheran and Catholic community, but I know enough about Shinto (and the Omoto-kyo of the founder) to know what the actions mean. I agree that it seems more a “historical-cultural thing” but – and this is something I like – it is a religious ritual element that is inseparable from that culture.

          • TadhgMor

            Yeah. I took Isshinryu, and I always liked that they would sit us down and teach us the (short) history of the style, and talk to us about Okinawa and how the styles developed. There is a whole story tied up between the founder of Isshinryu and the Mizu Gami (a Shinto goddess) that was philosophically relevant to the style.

            I took Hap Ki Do after I moved, and despite making me learn more Korean names for kicks and things it completely lacked the deeper philosophical underpinnings I had at a small school in nowhere Tenn with Isshinryu. The majority of my (out of use these days) fighting style is still Isshinryu, despite those few years of Hap Ki Do.

            Of course I’m a big fan of religious ritual element inseparable from culture. Someday I hope I achieve that level of comfort for myself in Gaelic polytheism, though I’m not yet there.

          • http://www.forgingthesampo.com/ Kauko

            It might be different depending on where in the US you are, but here in the South, I’ve gotten the impression that it’s not uncommon to find martial arts schools with a very Christian focus.

          • Nick Ritter

            I’ve heard of such things, and when I was in college (University of Minnesota, Minneapolis Campus), there was a Christian Martial Arts Academy nearby; the style was Aikido, I think. It didn’t last long.

            These sorts of things seem to be a reaction on the part of Christians against the perceived threat of “eastern mysticism” in martial arts instruction, and it interests me whether the people who try to Christianize the Asian martial arts are successful in ripping out the soul of a practice to replace it with a very different sort of ideology.

          • http://www.forgingthesampo.com/ Kauko

            Christian Aikido: WWJTD Who Would Jesus Throw Down?

          • Nick Ritter

            Christian Taekwondo: Now kick me in the other cheek…

          • Robert Mathiesen

            There used to be a very high-level martial arts school here in Providence, RI, which was so explicitly Evangelical that Jesus was mentioned on its street signboard and non-Christians were not welcome to join the classes.

        • Ambermoone

          Nick, it was White Tiger Kempo/Kajukenbo. The founders are Hawaiian, I believe. We (my husband and I) were shocked! He had been an instructor for years. We bow in at the start of each class which is standard for martial arts. I’d been doing a variety of styles for years. However, leading 75 plus people in that prayer really put us off. They went on for what seemed like forever about Jesus and the one and only God. I know there are several offshoots of Kempo, so this doesn’t speak for all of them.

          • Nick Ritter

            Thanks, Ambermoone. Being familiar with the social dynamic in martial arts instruction, I imagine that must have been rough to sit (or kneel) through.

    • thelettuceman

      From what I have read of modern Christian theologians and philosophers, it’s part of the Christian message to evangelize, an inherent and intrinsic part of that faith. So what then? Where does this opinion stand if it is part of a religion’s fabric to spread the message to non-believers?

  • Vision_From_Afar

    I’ve already fired off a letter to my state’s AG : here.

    I have to say, though, I’m getting really tired of all the crap the USSC is catching for the “Voting Rights Act” decision. What they did was remove an unfair, prejudiced statute from federal law. Do you honestly want to sit there and tell me that only the South will modify voting districts based on race and other demographics? Only the South is racist and classist, after all these years? Bullhockey. The entire country has to face up to their underhanded tactics, and continuing to single out one of the most looked-down-on regions as the “big offender” only hinders that dialogue.

    • Baruch Dreamstalker

      Bit of a red herring here, my friend. The VRA act as revised a few years ago had provisions that a new jurisdiction could be added to coverage for cause, and that a covered jurisdiction could opt out if it had a clean record for ten years. The focus on the 1965 offenders had been updated. This was the formula that SCOTUS revoked, and imho it deserves all the flack it is getting.
      You raise a good point, however. Here in Ohio we have a heavily gerrymandered Congressional map (and state legislature) biased toward Republican incumbents. Unfortunately, as long as districts are of approximately equal population there is no established constitutional bar to gerrymandering. Retaining the VRA would not have prevented this.
      Perhaps a suit could be mounted to the effect that the constitutional guarantee of a “republican [note small r] form of government” to each state, precludes a district map consisting entirely of safe seats for incumbents.

      • Vision_From_Afar

        I’m going to have to disagree with you still. The VRA as revised in 2006 continued to use the same formula for “who gets scrutiny” (section 4), which still resulted in only eyeing the same seven states (+ various other counties). Still targeting the South for 50 year old problems. The Court left in section 5, which gives Congress all the power it needs to come up with a new formula that can be applied to all states.
        I could get behind your mentioned suit, though.

        #EDIT: Sorry, I mis-typed. Congress renewed the VRA section 5 in 2006, but the formula (Sec.4) was still based on the 1975 reauthorization. The coverage formula was only fed data from the 1975 polling data, which only continues the argument that the application and the formula itself was woefully outdated.

        • Baruch Dreamstalker

          Several formerly covered jurisdictions in the South have already moved toward stuff like intensified voter ID requirements that militate against the poor, therefore the Black and the Democratic, as soon as they were out from under scrutiny. That’s not 50-year-old news, it’s current events.
          Assuming you’re from somewhere in the South, I can only extend you my sympathies. I lived through the Civil Rights Movement, and it was certainly wrenching for that region. Looking at today’s map of places that ban gay marriage and places where complaints arise about overweening Christian dominance at the expense of Pagans, I must dolefully predict that the South is in for more wrenching.
          Before you look at a map of your own — yes, there are a lot of non-Southern states that ban gay marriage, and Ohio has one of the worst. That was adopted in a high tide of sentiment around the 2004 election, which has since ebbed. When the low-hanging fruit for repeal has been harvested, the South will remain entrenched. Again, my sympathies.

          • Vision_From_Afar

            Yes, I’m in (not necessarily from) the South. Bible Zipper (not belt), as I like to call it. Yes, several Southern states (Texas especially) have already begun new voter laws that were held in check by the old VRA.
            If those in Congress actually cared about their constituents, this would be a fantastic catalyst for some rapid, bi-partisan, national VRA reform. I’m not going to hold my breath, tho.

          • Baruch Dreamstalker

            Neither would I. There are too many members — call a spade a spade, too many Republicans — whose longevity in office would be more secure with more barriers to voting.

      • Northern_Light_27

        Love your suit idea. I’ve a friend who is a tenured poli sci professor and longtime party hack who tells me that in his opinion the worst problem facing American politics is the gerrymandered “safe” districts, and he’d love to see them go even if they make it easier to get his party in power.

  • Baruch Dreamstalker

    One more example of the privileged seeking to reinforce their privilege against perceived marginal erosion.

  • http://www.patheos.com/blogs/paganswithdisabilities/ Tara “Masery” Miller

    The only true solution is the separation of church and state where no prayers are offered before government functions or meetings.

    • paganheart

      Spot on. The entire practice is stupid and silly. End it already.

      If all expressions of religious belief (or non-belief) cannot be welcomed, allowed and encouraged, then none can be allowed. Full stop.

      Sorry if it makes a few Christians uncomfortable for a few minutes to sit through an Islamic, Jewish, Buddhist, Sikh, Hindu, Wiccan, Druidic, etc…. prayer, but guess what: you’ve been making the rest of us uncomfortable with your bullying “come to Jesus or burn in Hell” claptrap for years! What’s good for the goose….

    • cernowain greenman

      I respectfully disagree. I believe we all could use some humility and to stop and collectively recognize the powers that be in the universe that are greater than us. It is a moment that we collectively set aside hubris, ego and pride that get in the way of joint endeavors. Our civil visions, planning, and discussion– as difficult as they often are– could use a blessing and a little help.

      • Baruch Dreamstalker

        Cernowain, if the prayers actually offered were as simple, as deep and as shorn of sectarian particulars as your comment, there would be no controversy.

        • cernowain greenman

          If (and it’s a big IF) the SCOTUS in their decision can clarify the boundaries of civic prayers, that may help. Especially if these these town boards know they will face large lawsuits when this privilege is abused.

  • bloodyheck

    I have no problem with a moment to THANK the CREATOR..be-it, god, allah, the flying spaghetti monster, the milk cow or your MAMA..as long as it just says CREATOR..not a specific GOD..

  • Anne Johnson

    These public meetings are for the purpose of municipal business. There’s no logical reason to include prayer of any kind. Gavel goes down, business begins. Any kind of prayer, to any deity, presumes that the elected officials cannot conduct business without the intervention of a Higher Power. Oh, please.

    As members of minority faiths, we should not settle for tokenism. Tyranny of the majority is a dangerous thing.

    • Ambermoone

      I agree with you Anne. There is no need for any sort of higher power or deity to be mentioned at a public municipal meeting. Let’s leave that for religious meetings.

  • TadhgMor

    I’m curious, does anyone know what the legal standard for “coercion” would be?

    I get the feeling it would be mostly one of those “he said she said” sort of deals, meaning that it would be very rare that minority groups could fight back, but I’d love someone with more knowledge to explain further.

    • Baruch Dreamstalker

      Alas, coercion probably involves captive audiences, such as public school students required to attend a religious assembly. If you don’t want to hear the city council’s prayers you can not attend their meetings (thereby losing a right of citizen participation).

      • TadhgMor

        Unfortunately that sounds about right to me.

  • Robbie Wallace

    There should be NO prayers in a secular meeting.

  • Franklin Evans

    It can seem trivial to some, and there is certainly a deserved respect for those who sincerely bring their spirit and spiritual beliefs to their public service, but a line was drawn from the very start — First Amendment and the no religious test clause — that was routinely ignored until the current era (post-WWII). Mandatory prayer in public schools, for example, was a very important issue well before the court fights to stop it altogether. Protestant control of schools and the form of forced worship was a key motivator for the growth of the Catholic (parochial) school systems.
    We live in a slippery-slope mindset. It is prevalent on every side of every important issue. It is not trivial to those who believe that letting them “go” on governement sanctioned prayer is just the first step. I don’t agree with most slippery slope arguments (well, it’s easier to count on a couple of fingers the ones I do agree with), but I emphatically agree with the priniciple involved.

    Cernowain: As much as I immediately agree that too many public officials need (more than prayer) help in doing their jobs, it is not the place of a public meeting whose primary purpose is to report on what has been done and what will be done to make those prayers. Every single one of them can sit in the privacy of their homes or offices and achieve the very same effect. For those executive meetings where debates and votes take place, I’d personally rather see each one of them focus their energy, minds and hearts on the issues and the decision-making process. Again personally, if some external spirit is important in helping them do that, they do not belong in their seats.