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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.

The United States Supreme Court has agreed to hear a case stemming from sectarian prayers before local government meetings in Greece, New York. At the heart of the case is the question of if a policy regarding invocations can be pluralistic and inclusive in letter, but not in spirit.

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

“Town officials said that members of all faiths, and atheists, were welcome to give the opening prayer. In practice, the federal appeals court in New York said, almost all of the chaplains were Christian. [...] Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of the government establishment of religion. The appeals court agreed. “The town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” Judge Calabresi wrote.”

This is a very big deal. One that strikes to the very heart of a “model invocation policy” peddled by conservative Christian legal advocacy group Alliance Defending Freedom (ADF – formerly known as the Alliance Defense Fund). The thesis is that sectarian prayers (rather than the “ceremonial deism” that permeates many government bodies) are constitutional so long as the written policy is inclusive of all faiths. However, they calm nervous Christian government officials worried about an influx of religious minorities by noting that no special efforts to be inclusive are necessary.

“If a public body implements a legitimately neutral policy and procedure to invite local clergy from established congregations in its community to offer an opening invocation, that public body is not required to extend any extraordinary efforts to include particular minority faiths. In other words, no apology is necessary for the demographics of the community that the public body serves.”

In short, opening invocations can overwhelmingly reference Jesus Christ, and they can send invitations only to “established congregations” (ie brick-and-mortar churches) so long as they include a religious minority who inquires/complains. Something I’ve dubbed the “include a Wiccan gambit,” which is exactly what Greece, New York did.

“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.’”

For a time, this gambit seemed to work in the lower courts. Then, the 4th Circuit Court of Appeals and the 2nd Circuit Court of Appeals both handed down rulings that called into question whether this invocation tokenism could really offset a regular schedule of Christian prayer.

“We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials. We emphasize that, in reaching this conclusion, we do not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case.

The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process. The randomness of the process, however, was limited by the town’s practice of inviting clergy almost exclusively from places of worship located within the town’s borders. The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

Cynthia Simpson and Darla Wynne

Cynthia Simpson and Darla Wynne

These cases, and the “model invocation policy” itself, are haunted by the involvement and activism of modern Pagans. It isn’t just that Greece included a Wiccan sectarian prayer among thousands of Christian prayers. The ADF’s policy blueprint was partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. These two cases helped set the precedents that advocates of sectarian prayer have been navigating through, and their efforts at mob-rule prayer sectarianism will finally be tested by America’s highest court.

How will the court decide? It’s hard to say. SCOTUS took a pass on considering the similar 4th Circuit decision, letting their decision stand, but they may have simply been waiting for a case that would suit the Court’s needs better. For the most part, the modern Supreme Court doesn’t like to corner itself into making sweeping decisions, and it could be that the justices see a needle-threading solution to the issue at hand. Then again, we could be in for another “ministerial exception” moment where broad new freedoms are outlined and defined. At this point it’s anyone’s guess, but I’m sure advocates on both sides of this issue are readying themselves for a fight that could shape invocation policy for a generation.

 

The Second Circuit Federal Appeals Court has today issued a ruling striking down the controversial Defense of Marriage Act (DOMA), a federal law that defines marriage as (only) between one man and one woman. Even more striking, according to ThinkProgress, is that the opinion, penned by Chief Judge Dennis Jacobs, a deeply conservative appointee, is so sweeping in its decision.

Chief Judge Dennis Jacobs

Chief Judge Dennis Jacobs

“Jacobs is not simply saying that DOMA imposes unique and unconstitutional burdens on gay couples, he is saying that any attempt by government to discriminate against gay people must have an “exceedingly persuasive” justification. This is the same very skeptical standard afforded to laws that discriminate against women. If Jacobs’ reasoning is adopted by the Supreme Court, it will be a sweeping victory for gay rights, likely causing state discrimination on the basis of sexual orientation to be virtually eliminated. And the fact that this decision came from such a conservative judge makes it all the more likely that DOMA will ultimately be struck down by the Supreme Court.”

In essence, the writing is on the wall, the battle over whether same-sex couples will be able to legally marry their partner is all but won by those who believe in marriage equality. So even if the various same-sex marriage initiatives going to the ballot box this November end up restricting marriage rights/rites, it seems increasingly likely that a Supreme Court decision will eventually trump them all. This is as it should be, because the basic inherent rights of individuals to form social contracts, and have those contracts be legally binding, to have their unions recognized by hospitals, courts, and the government that claims to represent them, should not be put to a popular vote. Otherwise you cater to the whims and prejudices of the majority, and in the process you end up privileging the religions that oppose same-sex unions.

“…as a Christian, I think it is time to admit who bears responsibility for atrocities like Amendment One and all other anti-LGBT legislation. It’s Christianity. I might want to say I’m not like those Christians over there who stood for Amendment One and other such legislation. But they are my brothers and sisters in the faith, no two ways about it. I might want to say those Christians don’t represent what Christ stood for. But I bet they would say the same thing about me. I can try to split hairs and divide the Christian community so I don’t have to think about the hate my faith tradition has spawned and let loose in the world like a legion of demons. But I can’t say any of that with a shred of integrity.” – Episcopal postulant David R. Henson

The fight for the equal rights and treatment of same-sex couples ultimately benefits the religions that support those rights, and destabilizes the ones that don’t. So it’s little wonder that opposition to same-sex marriage is regularly portrayed as a struggle against “paganism” by those who feel especially threatened.

“Marriage may be done for this culture in certain sectors, in certain pockets, but marriage most certainly is certainly not done because it is the God-ordained institution that mirrors the analogy of Christ and His church, it is the human institution that most closely reflects the heart of God the Father in Christ Jesus our Lord. That’s why they’re attacking it, they don’t know that that’s why they’re attacking it, they’re attacking it because they’re looking at all the advances in medical technology. I can have a baby without a man, so why do I need a man? I can earn more than a man, so why do I need a man? You can have a baby by adoption, and you can do it with a same-sex partner, so why do you need marriage? This is exactly what the pagans did, way back when, this is exactly what they did: destroy marriage. It’s shaking a fist in the face of God.” - Christian radio host Janet Mefferd

Within modern Pagan communities, support for legal same-sex marriage has been strong for years, with luminaries like Starhawk and organizations like the Covenant of the Goddess showing their support.

“Covenant of the Goddess has, since its inception in 1975, had clergy willing to celebrate the religious if not the legal joining of two members of the same gender. While we respect the right of the individual clergy within COG who may choose not to perform such a ceremony, we are in support of marriage between two committed adults of any gender, and a majority of our celebrants are willing to perform such ceremonies.”

A truly pluralistic and secular government understands that allowing one religious paradigm concerning marriage to trump all others is wrong, and undermines the very rights a free society holds sacred. We no longer live in a solely Christian nation, nor did we ever, really, from the very beginning America was built on a dance of power and privilege that sought to establish dominance for one viewpoint. That can no longer stand, and today’s ruling is not only a positive step forward for the rights of same-sex couples, but is also a step forward for all those who would want to bless those unions.

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In the long-simmering battle over the inclusion of (largely Christian) prayers at the beginning of government meetings, an assumption held sway that a written policy of pluralistic inclusion would provide a fig-leaf of legal protection against lawsuits from organizations like Americans United or the ACLU. At least that was the assertion of the conservative Christian advocacy organization Alliance Defense Fund (ADF). In their “model public invocations policy,” the ADF noted how important it was to have an inclusive “neutral” policy on paper, if not in actual practice.

“The bottom line is that any policy adopted and implemented [...] must ensure that the invocation opportunity is not exploited to proselytize any particular faith or disparage any others, or show any preference of the Council for a specific faith or religious denomination. It is our belief that the Policy we have carefully drafted meets these criteria and would pass court muster if challenged. [...] No invocations policy has a chance to be upheld by a reviewing court today unless it offers equal opportunity to at least the broad array of monotheistic faiths and denominations with a presence in that particular geographic area.  One conclusion from the case law is clear: if a public body allows any prayers, it is required to allow for most all prayers, without unlawful discrimination against any.”

The document goes on to assert that no “extraordinary efforts to include particular minority faiths” were necessary, and “no apology is necessary for the demographics of the community that the public body serves.” In other words, in their opinion, a predominately Christian town doesn’t have go out of its way to include Wiccans, Hindus, or Buddhists. This policy blueprint was partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. The idea was that if local governments threaded the needle of this issue carefully, they could have their cake (opening prayers), and eat it too (mainly Christian-only prayer).

Cynthia Simpson and Darla Wynne

Cynthia Simpson and Darla Wynne

For awhile, this tactic of de facto tokenism seemed to be working well. Towns like Greece, New York and Lancaster, California won lower-court challenges by including a smattering of minority religions in sectarian prayers (aka the “include a Wiccan gambit”), with the majority of prayers being Christian ones. Then a setback for sectarian prayers to Jesus emerged in the 4th Circuit Court of Appeals, who ruled that simply saying you’re inclusive while showcasing predominantly sectarian Christian prayer is not acceptable.

The 4th U.S. Circuit Court of Appeals today ruled 2-1 that the Forsyth County Board of Commissioners’ preference for Christian prayers violates the constitutional separation of church and state. [...] The record in the case indicates that 26 of the 33 invocations given from May 29, 2007, until Dec. 15, 2008, contained at least one reference to Jesus, Jesus Christ, Christ, Savior or the Trinity. The appellate court majority said government favoritism in religion is wrong. “Faith is as deeply important as it is deeply personal,” wrote Judge J. Harvey Wilkinson, “and the government should not appear to suggest that some faiths have it wrong and others got it right.”

This ruling withstood appeal when the Supreme Court of the United States denied certiorari (judicial review), prompting the ADF to complain that “the standard for prayer policies in the 4th Circuit will be different from the standard held by the rest of the country.” Now, it seems like the 4th Circuit has just been joined by the 2nd Circuit, who ruled on Thursday that invocations given before the town of Greece, New York (one of the early winners in the “include a Wiccan” gambit) should have been more inclusive, and the town should have gone to greater lengths to ensure religious diversity.

“…the U.S. Court of Appeals for the Second Circuit ruled the town of Greece, a suburb of Rochester, should have made a greater effort to invite people from other faiths to open monthly meetings. [...] The court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there. [...] “The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint,” it ruled.” The court acknowledges there was no formal policy on who should be invited to deliver invocations, and that the town was open to people of all faiths speaking at meetings. But it also noted the town board didn’t publicize the idea that anybody could volunteer to deliver prayers…”

The decision went on to note that a town’s religious community cannot be defined by a list of churches or religious organizations, since a town is a community of “individual residents” who each have may have unique beliefs and philosophies.

“The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

The ADF, who were defending the town of Greece, has already vowed to appeal this ruling, saying that towns will have to “complete an obstacle course” in order to have opening prayers at government meeting. If this decision holds, as the 4th Circuit’s did, it could help establish a new standard for government prayer, one that demands strong pluralism if a body is going to allow sectarian invocations. It remains to be seen how long the Supreme Court will punt on this issue by denying judicial review. Eventually, they will have to make a stand on these policies, just as it recently took a stand on the question of “ministerial exception.” However, for now, Pagans and other members of minority religions have a new precedent to use in demanding equal treatment in regards to public prayer. No doubt several towns and cities who fall under the jurisdiction of the 2nd and 4th Circuit Courts are currently talking with their lawyers over their prayer policies, and whether they need to include far more Wiccans (and Buddhists, Hindus, Musilms, Jews, etc) than previously imagined.