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On Monday the Supreme Court of the United States (SCOTUS) upheld the right of legislators to offer sectarian prayer before conducting business. The landmark decision overturned a U.S. 2nd Circuit Court of Appeals ruling in the now famous case, Town of Greece vs. Galloway. SCOTUS’ concluded that “the town’s prayer practice does not violate the Establishment Clause.”

Photo By Jarek Tuszynski (Jarekt) (Own work) via WikiCommons

Photo By Jarek Tuszynski (Jarekt) (Own work) via WikiCommons

The case began in 2007 when Susan Galloway and Linda Stephens challenged the town’s legislative prayer practice which, to that point, had only included Christian clergy. The case was heard by the U.S. District Court in Western New York which ruled in favor of the town stating:

The Christian identity of most of the prayers givers reflected the predominantly Christian character of the town’s congregations, not an official policy or practice of discriminating against minority faiths.

The District Court also stated that the town was exempt from seeking clergy outside its own borders in order to maintain religious diversity. This ruling was eventually reversed by the U.S.Court of Appeals who felt that aspects of Greece’s prayer program, seen as a whole, did indeed endorse Christianity and were therefore unconstitutional.

In November 2013 the case moved to the Supreme Court. Monday’s ruling reflects the opinion of the District Court decision which declared the legality of the town’s prayer program. However SCOTUS’ focus moved away from the concept of “religious endorsement” toward a test for “coercion.” Are the town’s legislative prayers being used to coerce attendees into practicing or fiscally supporting the Christian faith?

The Court didn’t believe so. In its deeply divided 5-4 ruling, SCOTUS states:

Municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding which exercised government power in order to extort financial support of the church, compel religious observance or control religious doctrine.

The Court’s opinion, as prepared by Justice Kennedy, emphasizes the historical and cultural aspects of legislative prayer. He says that the purpose of such prayer is chiefly “to lend gravity to the proceedings” or “public business” not to coerce. The prayers are for the legislators; not the attending constituents.

SCOTUS’ ruling also places a powerful emphasis on national tradition and heritage. It reads:

Legislative prayer has long been understood as compatible with the Establishment clause … This fits within the tradition long followed in Congress and State Legislatures.

In essence the Court ruled that Greece’s prayer program was non-coercive and fully reflective of American historical tradition and the town’s own cultural heritage. If a legislative body employs sectarian prayer to “lend gravity” to its proceedings and does so in a way that is non-threatening, then religious prayer before a governmental meeting does not violate the Establishment Clause.

The Supreme Court of the United States

The Supreme Court of the United States [Public Domain Photo]

Not all of the Justices agreed. Two of the four dissenting opinions came from Justice Elena Kagan and Justice Stephen Breyer. Kagan’s strongly worded opinion begins:

For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian

Kagan goes on to point out that prayer in front of a large Congressional body is very different from that of a small town council. The intimate setting of the latter allows for a scenario that could lead to religious coercion through simple social pressure. That type of pressure is less likely within a giant legislative body where it might be easier to walk out, not bow your head or simply ignore the proceedings.

Justice Breyer agreed with Kagan and, in his own comments, said that legislative prayer is not solely for the officials. In that small town setting, attendees are often active participants in legislative business. Breyer also believes that Greece made “no significant effort” to mediate the issue, to invite non-Christian clergy or to create diversity guidelines for its speakers. He says:

During more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 – 2010), only four prayers were delivered by non-Christians. And, all of these occurred in 2008, shortly after the plaintiffs began complaining about the town’s Christian prayer practice and nearly a decade after the practice had commenced.

Since Monday the National American Civil Liberties Union, Americans United, Hindu American Foundation, The Religious Action Center of Reform Judaism, Freedom From Religion Foundation and many other organizations have expressed their fear and disappointment in the SCOTUS decision. As stated by Rob Boston from Americans United for Seperation of Church and State (AU), “This ruling is out of step with the realities of modern-day America, which is marked by expanding religious and philosophical diversity.”

Pagan Artist RC DeWinter tweeted, “This is just the first chink in the wall.” The wall being the one established between religion and government. It is the one that provides for the religious freedoms described in Kagan’s opening statement.

Pagan Blogger Literata, expressed her owns concerns saying “The decision is all about accommodating the majority rather than protecting the minority. In the meantime, we run a serious risk of being used as cover – call it the “I Have a Wiccan Friend” defense.”

[Public Domain Photo]

[Public Domain Photo]

Their fears and frustrations may very well be justified. In Roanoke County Virginia, Board Supervisor Al Bedrosian has already established a plan to overturn the County’s prayer policy which currently allows for the region’s “expanding religious diversity.”

After Monday’s SCOTUS ruling, Bedrosian said “I think we have to say more or less that we’re a Christian nation with Christian ideology … we need to move toward our Christian heritage.” He has openly expressed concerns about the County’s policy being one that could allow for “Wiccan and Satanist” prayers. When the local Roanoke reporter asked if his proposed policy would permit non-Christian prayers, he said “probably not” adding that non-Christians were welcome to pray during the “allotted time for citizen comment.”

Despite Bedrosian’s grandiose statements, SCOTUS did not offer a complete free license to pray in any form before governmental meetings.There are limits and boundaries.The decision reads:

If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.

In that statement, the Court recognizes the potential for abuse. However SCOTUS didn’t feel it is place of the Courts to determine the constitutionality of specific language within a single prayer speech or what can and can’t be said. In addition the Judges themselves could not agree on the exact boundaries of the “coercion test.”  What constitutes a coercive prayer or action and what doesn’t?

With the new approach is the Court suggesting that it is now constitutional for a government to endorse a single religion through legislative prayer provided that the prayer speech does not coerce anyone into participating or threaten “damnation?” How important is historical precedent or tradition in deciding future policy in a changing culture?

As AU’s Rob Boston said “I suspect we haven’t seen the last of this issue.”

After weeks of debate and protest, the show-down in the Copper State is finally over.  Arizona Governor Jan Brewer vetoed State Bill 1062, the so-called anti-gay bill. With high stakes and increased pressure from corporations, Brewer had little choice but to object. On Feb. 26 she said:

I have not heard of one example in Arizona where business owners’ religious liberty has been violated … The bill is broadly worded, and could result in unintended and negative consequences. (The Washington Post)

While the notorious Arizona State bill is now certainly dead, the conversation is far from over.

Image: Wing-Chi Poon, CC lic. Wikipedia Commons

Image: Wing-Chi Poon, CC lic. (Wikipedia Commons)

The mainstream media dubbed SB 1062 “anti-gay” legislation in order to link the bill to recent public discourse surrounding marriage equality. However SR 1062 was not specifically “anti-gay.” In fact SB 1062 was not even new legislation. It was a proposal to amend a current Arizona law – one that is commonly referred to as a Religious Freedom Restoration Act (RFRA.)

Mark Bailey, a Druid living in Phoenix, Arizona explains:

We took the time as a State to vote on the people that we felt would advance our beliefs and protect our rights from those who do not understand Arizona. Instead what we got was a few very unscrupulous people who decided instead to forward a small minority of people’s rights ahead of everyone else’s. They decided that it was okay to try to legalize an individual’s right to bigotry, prejudice and outright hatred.

Mark Bailey, Druid and Arizona resident

Mark Bailey, Druid and Arizona resident

In April 2013 we reported on Kentucky’s passage of its own RFRA law after a series of disputes with its Amish community. Generally speaking, RFRA’s seek to protect the right to act or not to act based upon “sincerely held religious beliefs” when imposed upon by the government. This might include a public school test held on a holy day, a ban on beards or religious head wear, or a requirement to conduct legal business on the Sabbath.

At first glance the concept sounds great until you look a bit closer. Legislators have repeatedly recognized that the broad language of these type laws could potentially lead to abuse. Kentucky Senator Daryl Owen, “This is a piece of legislation looking for a reason.”

What changes did Arizona’s legislature make to its own RFRA that led to the recent uproar? SB 1062 expanded the RFRA language to include private industry. Here is a portion of the text from the revised law:

‘State action’ means any action  by the government or the implementation or application of any law, including state and local laws, ordinances, rules, regulations and policies, whether statutory or otherwise, and whether the implementation or application is made or attempted to be made by the government or nongovernmental persons.

Arizona Governor Jan Brewer (official portrait)

Arizona Governor Jan Brewer (official portrait)

SB 1062 replaced “government” with “state action.” The original (and current) Arizona RFRA only addresses burdens placed upon individuals by governmental agencies (e.g., the Amish buggy controversy, prayer in public schools.) The revised version would have included those burdens placed upon nongovernmental persons by nongovernmental persons when using a ‘law’ or ‘state action.’ This means that businesses could claim a defense under RFRA laws when they feel their “sincerely held religious beliefs” are being burdened. For example, this might include the subsidizing of birth control or the hiring or firing of certain individuals. Mark Bailey expressed his concern:

Companies have to designate themselves as “religiously affiliated employers” and can therefore by RFRA not be forced against their religious will to do something. Since the Bill was ambiguously written, it would have allowed wide varieties of actions to be potentially covered by this Bill … I saw the potential for this arrogance to be the beginning of a very dark time for just about anyone that someone in power thought was wrong for some reason.

While all the media attention was on Arizona,  Kansas had been pushing its own revised RFRA with very specific language. It reads in part:

No individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender …

While the Kansas bill has a very clear target, the Arizona law was far more open-ended and could have resulted in problems for many sectors of its population – not only the LBGTQ community. However, it is easy to see how SB 1062 quickly became a “gay issue.” Consider John C. Eastman’s, chairman of the National Organization for Marriage (NOM), reaction to the veto:

The fight has to be over what the First Amendment is … This is not somebody adhering to old Jim Crow lunch-counter discrimination. This is a fundamental dispute about what marriage means, and why it’s important for society.

Eastman’s comments demonstrate the underlying agenda of RFRA supporters.

In an on-air CNN debate with Cathi Herrod of The Center for Arizona Policy, Rob Boston of Americans United explains, “I really think that bills like this are the dying last gasp from people who just can’t accept the fact that American Society is changing.” He adds:

What legislation like this does is take a very noble concept like religious freedom and it turns it into a tool of oppression of other people and that is simply not right. That is a fundamentally anti-American value. It’s at odds with the First Amendment.

Last April Rev. Selena Fox, founder of Lady Liberty League and Circle Sanctuary, agreed saying:

Religious Freedom is an important foundation for the United States. We need to be vigilant, guard it, preserve it and uphold it. However, as part of this work, we also need to closely examine political crusades and legislation that are put forth in the name of “Religious Freedom.” Just because something is proclaimed to be about “Religious Freedom” does not make it so.

According to The Washington Post, there are currently nine states considering related RFRA legislation. As the Post says, “Here are the states to watch if you want to keep tabs on this issue:” Mississippi, Missouri, West Virginia, Oklahoma, Michigan, Idaho, Hawaii, North Carolina and Oregon. In West Virginia, there is even a proposal to amend the state constitution with specific religious language.

The same article also notes that six states have now abandoned attempts to push through or amend RFRA legislation. These include Tennessee, Utah, South Dakota, Ohio and Georgia. Kansas has even tabled its bill.

Image: Gonzo fan2007, CC-BY-SA-3.0 lic. via Wikimedia Commons

Image: Gonzo fan 2007, CC-BY-SA-3.0 lic. via Wikimedia Commons

Finally one more side point needs to be made with regards to the Arizona “kerfuffle.” During the weeks leading up to the veto, the NFL, the Arizona Cardinals Football Team, the 2015 Super Bowl Committee and Major League Baseball all came forward very quickly with strong statements against Arizona’s SB 1062 affirming their practice of diversity. These statements were expressed just as the multimillion dollar sports industry was faced with its own internal diversity challenge. Potential NFL draft pick Michael Sam announced he was gay. Conservative lobbyists now want Congress to legally ban gay players from the NFL and similar leagues. How will these national sports organizations react when confronting this issue in their own backyards?

The conversation is far from over.

 

There are lots of articles and essays of interest to modern Pagans out there, sometimes more than I can write about in-depth in any given week. So The Wild Hunt must unleash the hounds in order to round them all up.

That’s it for now! Feel free to discuss any of these links in the comments, some of these I may expand into longer posts as needed.