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.
“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.”
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.