Analysis of the Supreme Court's last decisions of the term and the impact of a vacant seat on the bench.
The issue of public prayer has returned to the U. S. Supreme Court. Thirty years ago, the high court settled a case in Nebraska, ruling the state legislature could open its sessions with an invocation. Such prayers are commonplace in public meetings across the country. Yesterday, the justices heard arguments in a new prayer case: Two citizens of an upstate New York town sued to stop officials from opening its board meetings with invocations — delivered to the assembled audience — that almost always make reference to Christianity. At issue: whether those prayers represent a religious endorsement. Guest host Tom Gjelten of NPR and his guests discuss the latest case before the Supreme Court.
- Barry Lynn executive director of Americans United for Separation of Church and State and author of "Piety & Politics."
- Mark Rienzi professor of constitutional law at Catholic University of America and senior counsel at the Becket Fund for Religious Liberty.
- Jeffrey Rosen president and CEO, The National Constitution Center; professor, George Washington University Law School; legal affairs editor, The New Republic; author, "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor, "Constitution 3.0."
MR. TOM GJELTENThanks for joining us. I'm Tom Gjelten of NPR sitting in for Diane Rehm. She's on a station visit, WESA in Pittsburgh, back here Monday. The U.S. Supreme Court opened its session yesterday the same way it has for decades with a statement from the marshal. It ended with these words, God save the United States and this honorable court.
MR. TOM GJELTENThe justices then heard the arguments in a case about whether sectarian prayers offered at town meetings violate the First Amendment clause prohibiting the official establishment of religion. Joining me to talk about the latest high court case: Barry Lynn of Americans United For Separation of Church and State, Mark Rienzi of Catholic University and the Becket Fund For Religious Liberty, and, from WHYY in Philadelphia, Jeffrey Rosen of the National Constitution Center.
MR. TOM GJELTENThis is an issue I'm sure many of you have strong feelings about, and we welcome your participation in this conversation. Let us know how you feel about prayers in public meetings. Our phone number is 1-800-433-8850. Our email is firstname.lastname@example.org. Or you can find us on Facebook or Twitter. Good morning, gentlemen.
DR. JEFFREY ROSENGood morning.
PROF. MARK RIENZIGood morning.
MR. BARRY LYNNGood morning.
GJELTENJeffrey in Philadelphia, why did the Supreme Court take up this case? You know, there have been cases about prayer before. Why did the Supreme Court take up this particular case?
ROSENThis is a case about legislative prayer, which the Supreme Court has long allowed. In 1983, it said that prayers before Congress are fine basically because, ever since the first Congress, there's been a historical practice of allowing them. But this case was different, and it aroused controversy because, here, the city of Greece has a town board, the most important part of town government, that for a long time allowed prayers that were openly sectarian.
ROSENThey invoked Jesus Christ, and they also took place at not the opening of a legislative session like Congress but a place where citizens would come to argue for zoning relief. And basically it was like a mini legislature. And after there was a lawsuit, the city opened up the prayers, and there were a few non-Christian prayers. There was a Jewish prayer, and a Wiccan priestess gave a prayer.
ROSENBut basically, most of them were Christian. And the lower court struck that down on the grounds that it wanted to make sure that whatever prayers were allowed were nonsectarian, they appealed to all religions and didn't single out a particular one. Basically, the case is absolutely fascinating because it's the first opportunity the Roberts courts will have to show us where it comes down on the question of prayer in public places.
ROSENThere are some justices, led by Justice Antonin Scalia, who made clear during their argument yesterday that they believe that openly sectarian prayers in public spaces are fine as long as they discriminate among religions. That would be a big change in our current jurisprudence. Other justices made clear that they only want to endorse the prayer because it was historically allowed and don't want to basically open the door to open sectarian prayers.
ROSENAnd then there's the question, as always, of Justice Kennedy. In the past, he has said that he thinks that the test is whether someone is coerced into giving a prayer. And here, the fact that citizens had to stand up before they made their pitch to the town council, people disagreed about whether that was or wasn't coercive.
GJELTENOK. Barry Lynn, take us back to 1983 and the big case back then. Again, following on what Jeffrey just said, what do you see as the big difference between this case and the case in 1983?
LYNNYeah, the case in 1983 revolved around a Nebraska State legislature as a unicameral legislature, and they decided to have a chaplain. And historically they had had a chaplain. The difference between that kind of legislative prayer and what's going on in Greece, N.Y., right outside of Rochester, is this -- the chaplain was praying to the Nebraska legislature.
LYNNHe was there specifically to pray for the members of that legislative body. In Greece, N.Y., it's quite different. In fact, the minister stands behind a podium with the seal of the city of Greece, N.Y. on it and doesn't look at the town council, looks at the people who are there to petition their government for something.
LYNNAlmost everybody who shows up that same night will have a request to that town council to do something, maybe get extra help for a child with disabilities, maybe it's change the cable television access rules, fix a dangerous intersection, the very things that I should say will be noted if you don't participate in this majority Christian, almost entirely Christian prayer.
LYNNIf you are Jewish, if you are an atheist, if you are a Hindu, and you don't participate, people will notice, including those five people who are praying and who authorize the prayer in the first place. That's what the coercion is. You're not going to get what you want if you don't go along.
GJELTENMark Rienzi, how do you see this case? And give us a little bit of a background here on what the supervisors in Greece were doing, their reasons for doing it. And how do you see the issue?
RIENZISo I see the issue as relating to how we deal with religious diversity in a country that has government of the people, by the people, and for the people. And what the Supreme Court has said for many years, and what the original people who wrote the establishment clause said is that there's nothing wrong with the people who are involved in government if they so choose to have a prayer.
RIENZIHere, it was a voluntary prayer with people from the town able to come in and volunteer to give it. There's nothing wrong with that. The reason -- if you listen to Jeffrey's introduction and if you listen to the argument from yesterday, you see all the justices saying, well, how are we going to figure out which prayers are OK and which ones are not? The answer to that is it's the wrong question.
RIENZICourts, the government shouldn't be sitting around editing people's prayers to make them acceptable to a majority. What we should say is that this is a country that has some religious people, some nonreligious people, and that the government is not going to be a religion-free zone where we tell people, well, if you're religious, you leave that home any more than we tell them they can leave any other part of their identity home.
GJELTENJeffrey, that is an important issue, isn't it, whether the government should be in the position of deciding which prayers are sectarian and which ones are not? I mean, that is inevitably a subjective call, isn't it?
ROSENIt is a crucial question. Mark is absolutely right about that, and it's also highly significant that the Obama administration agrees with Mark that judges should not be in the business of deciding what prayers are permissible and what prayers are not. And the Obama administration is basically urging the court to uphold this particular legislative prayer on the grounds that it's wrong for government officials to second guess the content of prayers, and it should be upheld as consistent with historical practice.
ROSENThe problem is that the Becket Fund, Mark, and the town of Greece as well are pushing for a broader ruling than the Obama administration wants. The town, in its brief, basically says that openly sectarian prayers are fine, and there's no need to insure nondiscrimination between religion and non-religion.
ROSENAnd Justice Scalia was jumping on that to basically, which would represent a dramatic change in our current jurisprudence, to overturn tests that in the past have said that -- does the practice endorse religion, that they think is too relaxed a test, and basically allow open religious sectarian expression. So there are ways of ruling broadly or narrowly, but it's certainly true that people on both sides of the political aisle have questions about government actually reviewing the content.
GJELTENOK. Barry Lynn wants to jump in here, but, just before you do, Barry, I want to -- Mark, are you comfortable with the way that Jeffrey portrayed your argument here? He sort of characterized the side -- and are you a party to this case, the Becket Fund?
RIENZINo. That was the first thing I was going to say is the Becket Fund -- we submitted an amicus brief, but we actually don't represent the town.
GJELTENRight, OK. But would you agree with Jeffrey's analysis that your side, as it were, in this case actually wants to go further than what the Obama administration, through this list, is arguing?
RIENZIWhat I would say is this, is that our view, the Becket Fund's view, is that the establishment clause simply is not triggered when a Wiccan priestess is allowed to give one of the invocations at a town meeting in Greece. The town of Greece is not establishing being a Wiccan when it does that. The establishment clause relates to a very specific thing, and it doesn't say you have to strip all religion out. So in that sense, sure.
GJELTENOK. And Barry.
LYNNYeah. There's so many red herrings in this case that if you threw them all together into the blue sea, it would turn purple. I mean, this is one of them. There's no censorship of prayer going on in the 37 states that have guidelines for chaplains about what to say just to be decent in a multicultural society, in a religious society, and a society that has 2,000 different religions and 25 million nonbelievers. We're just trying to be decent about it.
LYNNThe House of Representatives has written guidelines, not just that you can't go over 150 words but that you need to respect the fact that the members of Congress come from diverse backgrounds and even says specifically you can't intervene in your prayer in any foreign or domestic policy matters. So we do this all over the country. Unfortunately, our clients in the Greece situation tried to get a reasonable settlement out of the town.
LYNNThe town repudiated everything they wanted, and that's why we ended up in the United States Supreme Court. It's just common decency, courtesy. You don't have to be a genius or a theologian to know what a sectarian prayer is because those of us in the clergy -- and I am in the clergy among other things. I know what a sectarian prayer is, and so does everybody else.
GJELTENBut you had a case here where an individual supervisor sort of pushed the limits on how can you be sure, you know, that in all these other settings that somebody else is not going to push the limit and raise the issue? First, I want to go to Mark.
RIENZISo I would agree wholeheartedly with Barry's comment that it is about decency and courtesy. The question is whether decency and courtesy are things that are enforced through the establishment clause of the United States Constitution. I think the much better read of the Constitution is that the establishment clause is about a specific thing, whether we're establishing a church.
RIENZIAnd, by all means, through courtesy and decency, nobody should be forced to say a prayer. And if anyone was actually forced, that would violate the establishment clause. So courtesy and decency in a diverse society absolutely should have an impact. They just don't make it a Constitutional issue.
GJELTENQuickly, Jeffrey, do you have a thought before we go to break?
ROSENI do. I think Justice Kagan put her finger on the core of the case. Her very first question was, what would you think of the following? Suppose the chief justice began the courtroom by saying, we acknowledge the saving sacrifice of Jesus Christ on the cross, basically an openly sectarian prayer. And the answer was, well, courts are different than legislatures. But Justice Kennedy didn't like that.
ROSENHe was sort of open to the idea of the openly sectarian prayer, and that's why really the cumulative effect of the strong argument that the city of Greece is making in this case would be to license, as the people on the other side say, sectarian proselytizing worship by the government in any setting. So the stakes are really quite high if there were a broad ruling, as some of the justices seem to want to have.
GJELTENOK. Jeffrey Rosen is president and CEO of the National Constitution Center, also a professor at George Washington University Law School. We're talking about the Supreme Court case on what exactly should be the limits on prayer in public spaces. We're going to take a short break right now. Stay tuned.
GJELTENAnd welcome back. I'm Tom Gjelten sitting in for Diane Rehm today. And our topic is the Supreme Court case on whether prayer should be allowed in public places and under what conditions. My guests are Barry Lynn here in the studio. He's executive director of Americans United for Separation of Church and State, also the author of "Piety and Politics."
GJELTENAlso Mark Rienzi, professor of constitutional law at Catholic University and a senior counsel at the Becket Fund for Religious Liberty which, as Mark pointed out, submitted an amicus brief in this case. And in Philadelphia, Jeffrey Rosen, he is -- in addition to being president and CEO of the National Constitution Center, he's the legal affairs editor at the New Republic.
GJELTENAnd he has a book, "The Supreme Court: The Personalities and Rivalries That Defined America." I want to go to a couple of emails first. Let's see. Helen wonders, "What is the point of having prayer, any prayer, sectarian or otherwise, in a government meeting?" Mark?
RIENZIThe point is that this is a nation that has government of the people, by the people, and for the people. And those people are allowed to be who they are. They're allowed to be religious. They're allowed to be white. They're allowed to be black. They're allowed to be gay. They're allowed to be straight. In the government, the establishment clause does not say to those people, when you govern, you have to put that away and not be who you are.
RIENZIAnd the Supreme Court has recognized that for a long time. It's been a practice in the country for hundreds of years. The establishment clause means we can't have an established church. It doesn't mean that we strip out all the people who are religious and make them shut up about their religion if they want to govern. That's not what it means.
GJELTENBut we do have -- and, let's see here, Lisa wonders about this issue of being coerced. How do you deal with this argument, that people are coming before this board to ask them for certain actions, and if they, sitting on the other side of the dais, are identified by those supervisors as being not like the other people, that might arguably handicap their case?
RIENZISo a couple things. One, I don't think the facts on that are quite right. The way it was discussed in the court yesterday is that there's a half-hour break between when there's a prayer before the legislative session and when people are coming forward with petitions. But even so, the more important point is this: Being in the presence of somebody expressing a view you disagree with, a religious view, a view about politics, a view about any issue, is not coercion. It's part of living in a diverse society.
RIENZISo at the same meeting, they say the Pledge of Allegiance. People have a right to say the Pledge of Allegiance, and they have every right to not say the Pledge of Allegiance. They're not being coerced because other people in their presence say it. That's not -- if that's what coercion is, then everything is coercion. And that's just not how we can define coercion in a diverse society where there'll be people who disagree with you and you'll have to sometimes sit in a room with them.
GJELTENJeffrey Rosen, what's the judicial history here on how courts have dealt with this issue of coercion?
ROSENWell, the -- of course, the establishment clause was not applied against the states for a very long time, and there was a history of Catholics being forced to say Protestant prayers, which led to riots in the 19th century. So that was perhaps the most dramatic historical example of coercion. But, starting in the mid-20th century, the Supreme Court said that religious practices that are coercive in which people feel compelled to participate are not permissible.
ROSENSo, for example, at a graduation prayer, just as Kennedy wrote a famous opinion saying that if students in practice felt that they could not participate without being embarrassed, that was a form of coercion. Some people think that the coercion test is too narrow and believe that a more relaxed test which would say, is the government endorsing religion over non-religion is the more appropriate practice. That's a more separationist's view.
ROSENAnd then there are those who merely say the government should be neutral between and among religions, and the private religious expression is fine but that any public religious expression is wrong. And they don't want to get into the business of coercion. The truth is that the coercion test is responsible for much of the parsing of these prayers in this case. And the people who are challenging the prayers said, look, it's not our fault that you have to look at the content of the prayers or that Congress has guidelines for priests or that 37 states talk about how you should be nonsectarian.
ROSENThat's the fault of the -- it's the inevitable consequence of allowing these prayers in the first place. And if you're going to create an exception in legislative bodies for prayers, which are not allowed in schools and not allowed in court rooms under current jurisprudence, then it's necessary actually to figure out whether or not the prayer is sectarian.
GJELTENBarry, did you listen to the arguments yesterday or take note of them?
LYNNYes, I did.
GJELTENAnd did you get any hints from that, sort of how the justices are framing this issue sort of one by one?
LYNNI think the people who tend sometimes to be in the middle of these cases, like Justice Kennedy and even Justice Breyer, seem to be concerned about the particular way in which this Greece fact pattern pulls itself out or runs out. And whether you -- I don't want to get in the weeds here, but, whatever test you use, does this advance religion? Well, frankly, even the lawyer for the town of Greece said that the people who pray, who are invited to pray from the community, say that they're advancing religion.
LYNNDoes it endorse religion since 126 prayers -- only four of them all happening around the time we filed this lawsuit. All of the other ones are Christian. And there were the two Jewish prayers and one Wiccan prayer. But no matter how you slice it, if you don't buy coercion, it's clearly the advancement of religion. If you don't like that, does it endorse a particular faith when it's overwhelmingly Christian? Of course.
LYNNAnd Helen asked a very good question in that email. Helen says, why are we talking about any prayer at all? And contrary to what Mark has said, this is not about private prayer. If we wanted to have private prayer -- and many city councils do this, by the way -- likeminded people go into their chambers, go into the hallway, pray together, and then come out and do the people's business, fix the pot holes, deal with the school problems, and so on. So this is not an extreme view. This is what normal people do. It is abnormal to get into a fight like this.
LYNNBy the way, the history -- if history matters, Mark might want to comment on, like, what was the prayer back, you know, in 1990 in Greece, N.Y.? The answer is, it wasn't there because they had a moment of silence, a respectful moment of silence, until 1999. Then a man named Mr. Ahlberger (sp?) gets into the chair of the town council and decides to have these prayers.
LYNNAnd, by the way, he said when we did interrogatories for him, questions before the court case began, he said he wouldn't stop a minister who said an anti-Catholic prayer, a racist prayer, an anti-Semitic prayer. I mean, come on, we all draw lines -- that's what the law is, drawing lines. Some things are appropriate. Some things are not. If you're going to go wild and let homophobic prayers, anti-Semitic prayers, Mark, I mean, if that's your idea of just get along, live together, it ain't mine.
RIENZIA couple things. At the beginning of Barry's point there, he talked about the fact that people could go pray in their chambers. They can go pray someplace else. They just don't have to do it in public in front of people. That's not what the Constitution says. It's not what the establishment clause says. The establishment clause is not a license to tell people, take your religious side of yourself and go put it in the closet. Take it away. Put it in a cloister. Get it out of the public. That's just not what it says. And any interpretation of it that does, that is wrong.
RIENZIBarry's lawyers said yesterday in court that they're fine with a lot of prayers. It's not that they actually think prayer in a legislature is unconstitutional. Their lawyer said yesterday that they looked through the book, and about a third of the prayers they saw were perfectly fine. What this is really about is the effort to say that the government, and the courts in particular, ought to be in the business of editing down the prayers to make them acceptable to more people, to make them acceptable to the majority, and that's just not a role that's appropriate for government at all.
GJELTENMark, would you like to see prayer in public schools?
RIENZINo. I don't think prayer in public schools is appropriate. I don't think...
RIENZIWell, I don't think the government should be in the business of writing prayers for anybody to say. So Engel v. Vitale, the original...
GJELTENYeah, but what if a teacher just sort of voluntarily, you know, opened class with a prayer?
RIENZII think that's still a -- you know, that's a situation with children. That's a situation with the government possibly telling the children what to believe. And I don't think that's appropriate for the public schools.
LYNNIs that coercive? It's coercive, isn't it, to force young people to pray in the way that the teacher wants them to pray?
RIENZITo force them, I agree 100 percent. The problem with the coercion argument in this case is that no one's being forced. So if the question was, if Ms. Galloway was forced to actually pray the prayer, I'd be with them on this. I'd say that actually is coercion. The problem is it can't be viewed as coercion to simply have to be in the presence of a view you disagree with. That's not coercion.
GJELTENJeffrey Rosen, let me ask you -- I mean, you're a constitutional scholar. Let me ask you the same question I put to Barry. What did you hear yesterday at the Supreme Court in terms of the way each justice is understanding this issue?
ROSENI heard Justice Scalia openly suggesting that school prayer, if it was voluntarily chosen by students, would be fine, and not distinguishing between legislatures and other bodies, and essentially arguing for a big change in current jurisprudence and abandonment even of the coercion test and basically saying that open religious expression, as long as it doesn't discriminate among religions and is voluntarily chosen.
ROSENI heard Chief Justice Roberts not quite willing to go that far and focusing on whether or not people had to sit down or not. And on the practice, of whether or not the practice, this was coercive, and being very focused on the fact that there was a historical pedigree and suggesting that new religious practices, like, if God we trust were adopted tomorrow might be problematic. I saw Justice Kennedy who is very much -- is always the swing vote here, you know, being quite impatient with the petitioner's initial response to Justice Kagan.
ROSENShe said, why couldn't this court have an openly sectarian prayer? He said, well, no, legislature is different. And Kennedy said, why did you concede that? I mean, Kennedy really wants to narrow the coercion test and allow for more religious expression, but not go as far as Justice Scalia. And I heard Justice Kagan and Justice Sotomayor, who we've not heard about on this question yet before, forcefully embracing a position at the very least of religious neutrality, saying that the government had to be neutral between religion and non-religion.
ROSENAnd Justice Kagan -- I really found this quite moving -- ended her oral argument by saying basically that, I would've thought that there was something distinctive about Americans where they come before government bodies, and they express themselves not as members of particular religions but as Americans.
ROSENShe said, we all do so as Americans, not as Jews, not as Christians and not as nonbelievers. So she, in her first opportunity to express herself on the substance of a church state case, powerfully embraces this vision of religious neutrality and was resisting the religious supremacism articulated by Justice Scalia.
GJELTENJeffrey Rosen is president and CEO of the National Constitution Center. He's also editor -- co-editor of "Constitution 3.0." I'm Tom Gjelten of NPR. You're listening to "The Diane Rehm Show." Jeffrey, another question for you, as Barry said earlier, there's been a long history in this country of this not being an issue of governments and public organizations seeming to have figured this out on their own.
GJELTENHow do you explain -- and maybe this is a sociological question rather than a Constitutional question. But how do you explain that here in 2013 this issue comes up when we've had 200-and-some years of dealing with this issue?
ROSENWell, I don't know that it's been, you know, exactly a romp or, like, just sort of free of conflict. There was, for much of the 19th century -- as Barry knows better than anyone -- you know, this very contentious history of sectarian prayers, Protestant prayers being imposed on Catholics, and nonbelievers and Jews being excluded from these events. It was only after the Supreme Court decisions in the '40s and '60s that prayer came out of public schools. And I think the reason that they're coming back is because the court has really been very uncertain about exactly where it wants to draw the line.
ROSENAnd by saying public schools are no good but legislatures are different and that voluntary prayers are OK but they have to be open to everyone, it was that that really complicated things in this case because, you know, till 1999, a moment of silence -- then the prayers come in. Initially, they're all Christian. And it wasn't until a lawsuit that the Wiccans and the Jews were invited in. And that really opens up the question, how broadly do you have to publicize the fact that it's open to everyone?
ROSENJustice Breyer said, why don't you post it on a website so that there's a genuine diversity of contributions rather than having them be mostly Christian? So I think it's the complicated consequence of the interaction of the culture wars in America. And the courts own quite byzantine jurisprudence which is trying to encourage more public prayer as long as it's voluntary. And that requires some very tough lines to be drawn.
GJELTENMark Rienzi, did you notice yesterday any correlation at all in any direction between the views, the arguments expressed by the justices and their own religious backgrounds?
RIENZII did not, but I wasn't quite looking for it. I was -- so, no, I didn't. I looked at them as justices. I like Justice Kagan's view at the end that we all approach government as Americans. And I think the justices judge as Americans, so, no, I wasn't putting them in any boxes in that way.
GJELTENDo you agree, Barry?
LYNNI think Justice Ginsburg and Justice Kagan, as members of religious minorities, I think that they were particularly concerned about what's going on in Greece. And I would hope that we don't see this look like, when it comes out, like a split between those who are Christians and those who are non-Christians. But certainly, some of the comments yesterday would suggest that it might be heading toward that direction. And that would be very unfortunate.
LYNNAnd it's one thing to say, you know, we'd like the idea if we all come as Americans. If we all come as Americans, then we ought to respect the fact that some people, a large number of people in this country, simply choose no religious path. They're 100 percent Americans. And, frankly, Mr. Ahlberger and the people who started this in Greece really treat folks as second-class citizens if they don't get along and go along with the policy that ends up being primarily Christian. And that's very unfortunate.
GJELTENMark, this is a really important issue. If these people feel -- whether they are or not, if they feel like they're being treated as second-class citizens, if they in that government setting feel uncomfortable, if they feel alienated from their institutions, that's a problem for the democratic process, isn't it?
RIENZISure, it is. Let me say what I can easily agree with Barry on. Sure, there are plenty of people who don't have a religious belief. Plenty of people have a minority religious belief. And they're every bit as American. It's actually a quintessentially American choice to make, and so they're every bit as American as everybody else. The question of, could somebody feel uncomfortable there, I think that's a bad thing.
RIENZII think it's a bad thing if somebody feels uncomfortable because they don't say the Pledge of Allegiance that happens at the same meeting or because they're liberal in a place -- in a room full of Republicans or conservative in a room full of Democrats. So those things are bad. But the fact of the matter is, in a diverse society, we all need to deal with the fact that sometimes we'll be talking to audiences who have a different religious view than us, who have a different sexual orientation than us, who have a different race than us. That's part of being an American. And that's just life in a diverse society.
RIENZIAnd if we go with the rule that says, any time you feel different from the other people, any time you are subjected to having to hear somebody or something that doesn't express your views, it expressed an opposite view, that you've been coerced, then everything becomes coercion. Real coercion is when, for example, in the contraceptive mandate cases, the government says, we'll fine you $100 a day until you get with the program. That's actual coercion.
LYNNYeah, that is not coercion at all, but this is not the subject for today. I think that if coercion means they put a gun to your head or -- in a case that many people are reading about this morning in their local newspaper -- a fourth grader teacher down in Florida compels a child who happens to be a member of Jehovah's Witnesses -- they don't believe in saying prayers or recitations of any kind to an object, even the American flag.
LYNNShe forced this little boy to put his hand over his heart in order to express this. If that's the only thing that's coercion, we're in trouble. Coercion is when you feel that you will be hurt, you will be demonized, you will be ostracized because of what you believe or don't believe.
GJELTENBarry Lynn is executive director of Americans United for Separation of Church and State. My other guests here in the studio is Mark Rienzi, a professor of constitutional law at Catholic University. And Jeffrey Rosen, constitutional scholar, is with us from Philadelphia. We're going to take a short break. When we come back, your phone calls. I'm Tom Gjelten. Stay tuned.
GJELTENWelcome back. I'm Tom Gjelten. I'm sitting in today for Diane Rehm, and we're talking about the Supreme Court case where arguments were heard yesterday on what exactly should be the limits on prayer in public spaces. And we're going to go to your calls in a minute. My guests are Barry Lynn, executive director of Americans United for Separation of Church and State, Mark Rienzi, professor of constitutional law at Catholic University of America and senior counsel at the Becket Fund for Religious Liberty, and joining us from WHYY in Philadelphia is Jeffrey Rosen.
GJELTENHe's president and CEO of the National Constitution Center and professor at the George Washington University Law School. Mark, very quickly, you wanted to respond to the point Barry made just before, which was an example of coercion. I think we'd have to all agree, with respect to the Pledge of Allegiance, as reciting the Pledge of Allegiance.
RIENZIYes. And I think the Pledge of Allegiance is a great thing to look at for comparison. So the kid being forced to put his hand over his heart and say a Pledge of Allegiance -- absolute coercion -- shouldn't be allowed under the First Amendment, no doubt about it. The rule on the Pledge of Allegiance, though, is people are still allowed to say it.
RIENZIAnd if you don't want to, you don't have to. That's the right rule for a diverse society. And this is no different. Other people who choose not to say the pledge aren't being coerced when they choose not to say the pledge. And they shouldn't be allowed to silence everybody else.
GJELTENYou say this is no different, but in this case it involves the establishment of religion. The Pledge of Allegiance does not involve religion, unless you're objecting to that phrase under God in there.
RIENZIAnd that's why this all comes down to, what do you read the establishment clause to say? And my point is simply, when the Wiccan priestess says a prayer, Greece has not established Wiccanism as the church of the town. Establishment is a specific thing. It's not every mention of religion that makes somebody uncomfortable. And when you read it that broadly, you get into these silly situations, frankly, of the government trying to edit down the prayer to make it OK for enough people. And that's not what the clause does.
GJELTENI want to read an email we got here. This is an interesting email from a listener named Tom. He's also a newspaper reporter. His first assignment was to cover the county school board meeting in Pensacola, Fla. And he was stunned when the school board chairwoman called the meeting to order and then asked him to lead the assembled audience in prayer. He says he was speechless, but it was a, "welcome to the Deep South moment for me." I think you'd agree that that's probably not the right thing to do, to ask a reporter -- ask someone to actually lead a prayer.
RIENZISure. I go back to Barry's point about courtesy and decency in a diverse society. It shouldn't be done. It definitely shouldn't be done.
GJELTENLet's go now to D.J., who's on the line from Sycamore, Ill. Good morning, D.J. Thanks for calling "The Diane Rehm Show." D.J., are you there with us, D.J.? Maybe not. So let's go -- D.J., can you hear us?
D.J.Thank you for taking my call. I live in a moderately-sized town in Northern Illinois. And one of the veterans groups in the town holds publicly-attended services in the county courthouse for Memorial Day. My sons and I and my wife are all involved in Boy Scouts, and many of the scouts attend the services in uniform.
D.J.And we march in the parades that they have. I was wondering, about four or five years ago, I know that we were attending the services, and a preacher who was leading the services gave a lovely, eloquent, nonsectarian prayer. And, to my surprise, as I was standing there, it ended it with something like, Lord, in Jesus's name, we ask you to watch over all these souls.
D.J.This kind of startled me. Many of my relatives served in World War II. One was killed overseas. Another one was shot down three times in bombers over the Pacific. And I'm proud to say that they all served long and valiantly. When this prayer, which had been up to that point nonsectarian, suddenly turned to a specific religion, which does not happen to be our religion, I felt terribly disenfranchised. And it had been a beautiful prayer up to that point.
GJELTENOK. I want to put this question to…
D.J.OK. I contacted the group and pointed that out and asked if a less religiously specific prayer could be used. The following year, a different minister, I believe, started off, and it started right off with an invocation to Jesus. I...
GJELTENOK. Jeffrey, one of the interesting things here is he's talking about the Veterans of Foreign War. This is not a governmental organization. How big a difference does that make?
ROSENHuge. A private religious speech is good. Public religious speech is bad. And all the difficult questions are drawing the lines. That's the general position of those who believe in religious neutrality, as Justice Kagan seemed to be arguing yesterday. And therefore the Veterans of Foreign War, although it may well have made him feel uncomfortable, are certainly not only not prohibited but encouraged under the free exercise clause to allow for private religious expression.
ROSENThe caller does though make clear that it might not be that hard to distinguish between a sectarian and a nonsectarian prayer. You know it when you see it. In the record, in the town of Galloway case, about a third of the prayers were nonsectarian, and Justice Alito was stressing, you know, what does it mean to be nonsectarian?
ROSENWell, invoking our heavenly father, for example, and not our savior Jesus Christ. And although it is awkward to have government officials parsing the content of prayers -- and although the Obama administration's position is understandable in saying that shouldn't be done -- Judge J. Harvey Wilkinson, for the Fourth Circuit, a very distinguished conservative judge, said, if you are going to have prayers in public settings -- and legislative settings are prayers -- they do have to be nonsectarian, and it's not hard to figure out what a nonsectarian prayer looks like.
GJELTENOK. Simeon is on the line now from Rochester, N.Y. Good morning, Simeon. Thanks for calling "The Diane Rehm Show."
SIMEONGood morning. Thanks for taking my call. I'm a rabbi living in Rochester, and it has been my great privilege to be able to be involved in -- even a minimal level in this case -- on behalf of Susan Galloway and Linda Stephens. I want to make three very quick points.
SIMEONYes, sir. Recently I had an opportunity to have a conversation with Barry C. Black, who's the chaplain of the United States Senate, about this case. He said something fascinating. He said, why would I, as a chaplain, want to give a prayer that some of the people in the audience, my congregation metaphorically, would not be able to say Amen to? So I think that's an important question.
SIMEONWhy lead a session in prayer when you know that at least some of the people won't be able to say Amen to the prayer? The other thing is Justice Oliver Wendell Holmes said that the life of the law has not been logic. It has been experience. We need to look at the reality of how this scenario in Greece has played itself out.
SIMEONThe theory of the case presented by the town is that it's been neutral and open. The fact is that the two litigants have received hate mail. They've been subjected to all sorts of indignities and humiliation because they have a view that's perceived as being outside the framework of the mainstream. That's what happens when you have these prayers. You create a sense of people who belong and people who don't belong. One of the letters to the editor in the local paper -- hello?
GJELTENGo ahead. Finish quickly.
SIMEONYes. One of the letters to the local paper talked about the adage -- about this case -- said, when in Rome, do as the Romans. These people are not visitors. They are residents of the town. Tom, thank you.
GJELTENOK. Mark, he made an interesting point. When you give a prayer at a government meeting, you're not in a church. And you can't assume that all the people there are your congregants. So why would you address a prayer -- as the chaplain in the Senate said, why would you address a prayer that you know doesn't apply to all the people in your congregation at that moment?
RIENZISo, one, I don't lead anybody in prayer. So I wouldn't address anybody in prayer. Why might somebody else do it? I'd say that's their own religious decision. So there are some people who, when they pray, feel the need to pray in Jesus' name or in Allah's name or however they choose to pray. And we get into all these problems when we say that it's the governments business to edit it.
RIENZIIt would be better if we simply said, hey, look, sometimes somebody will say a prayer in a certain way, and you'll say, well, I agree with a lot of that. I don't agree with all of it. But we're in America, and they're allowed to be different. And somebody else can say something different next week. And that's how we should live with it.
ROSENYes, except we don't do that. And the town of Greece doesn't do that. So you have 126 prayers over a decade, and only four of them -- and only under the fear of a lawsuit and then the reality of a lawsuit do they change their mind. This is triumphalism, this idea that one religion is triumphant over others, in this case Christianity.
ROSENThat's what's being promoted. That's what's being advanced. And that's why, you know, this is different from some of the examples that people use quite reasonably to say there are ways one can make statements, bring people together, but not the way they do it in Greece with its sectarianism.
GJELTENJohn is on the line. He's calling us from Bristol, Va. Good morning, John. Thanks for calling "The Diane Rehm Show."
JOHNGood morning, guys. How are you?
JOHNI'm calling because I'm actually on the other side of this argument, me being a Christian. I see a lot of these cases being brought up, and it just seems like more and more Christians are being persecuted for their religion. And religious tolerance has to work both ways. You have to have tolerance for nonbelievers as far as for other religions that aren't Christian, just the same that they have that tolerance for Christians.
JOHNAnd, like, you have examples of people displaying crosses in their yards and then people being offended because they have to drive by and look at it. Is it not the same thing, oppressing them for their religious beliefs, as it would be, you know, if you were force somebody else to say a prayer or force -- I don't agree with forcing anyone to do anything.
JOHNThey should have the option to not join in the prayer if they don't want to. They shouldn't be coerced into, you know, saying the prayer out of fear of (word?), but, at the same time, there has to be tolerance both ways. And more and more you're seeing more, I guess, intolerant people that are speaking out against Christianity than vice versa.
GJELTENJohn, would you feel comfortable having a Muslim Imam leading a public prayer at your local city council meeting?
JOHNAbsolutely. Absolutely. Why not? Because he prays for the same reason that anyone else would pray, is that, you know, if he's praying for protection or blessings over the council, blessings over the people that are in attendance, then what's the harm in that?
GJELTENOK. Barry, do you want to speak to John?
LYNNWell, I do.
GJELTENBecause John, I'm sure, speaks for a lot of people in this country.
LYNNYou know, I do. And, Mark, the problem with this idea that those of us who are Christians are somehow the subject of a war against us, I mean, I have not -- and I can assure you, I know Jeffrey enough and Mark a bit -- I bet all of us would agree that if someone puts a nativity scene in their front yard and somebody is upset about it, that's just too bad.
LYNNThat's not the government endorsing anything. That's simply using your own space to promote your own religion, in the same way that these town councilmembers in Greece could spend the time -- those of them that are Christian -- I think they all are Christian at this point -- they can go and do a -- as a matter of fact, what Jesus once suggested -- go into their closet and pray.
LYNNIn other words, they can pray privately. They don't have to be ostentatious about it. They don't have to connect it to the government's business. They can simply do what they want in the same way that I'd like to think a person can -- and that all three of us would agree -- they can put up a cross in their yard, they can put a nativity scene in their yard, on their property, and that's their right.
GJELTENBarry Lynn is executive director of Americans United for Separation of Church and State. I'm Tom Gjelten. You're listening to "The Diane Rehm Show." Jeffrey Rosen, so we have the Supreme Court case here. And, you know, there's going to be a ruling from the Supreme Court on this case. What's at stake here? What is likely to change in one direction or another as a result of however the court rules?
ROSENIt could be that very little changes, and it could be that a huge amount changes. So if the court rules narrowly, if it does what the Obama administration has asked it to do, then nothing really will change. The Court could simply say, we've long had legislative prayers. This one is open to everyone, at least in theory.
ROSENGovernment shouldn't be in the business of reviewing the content of the prayers, therefore this is fine. If that's all the Court says -- and it's quite likely given Chief Justice Roberts's instinct to have narrow rather than broad opinions, that that's a real possibility -- then this will not be a huge case. By contrast, if the Court moves broadly and says not only in legislative sessions but anywhere is it OK to have prayers, and those prayers can be openly sectarian -- they don't have to be neutral between believers and nonbelievers -- that would be a huge deal.
ROSENThat would open up litigation to the resurrection of prayer in schools. It would lead to the agitation for the overturning of cases where Justice Kennedy has provided a narrow fifth vote for prohibiting school prayer that is teacher-led but allowing truly voluntary school prayer. Basically, it would signal that there are at least four justices with some sympathy with Justice Kennedy who really want to move jurisprudence toward open religious supremacism and public expression of religion, not neutral between religion and irreligion. That would be a really, really big deal.
GJELTENMark Rienzi, do you think the stakes might be as high as Jeffrey Rosen just laid them out to be?
RIENZII think the stakes could be very high. Look, the view that Barry's offering, as one that he said a minute ago, said they can go pray in their closet. They can pray out of sight. And Jeffrey talked about religious supremacism. It's not about religious supremacism. It's about allowing people to be religious while they do government work, allowing them to do it and saying it's not something that the Constitution makes you go put in the closet.
RIENZIJustice Kagan said that, when the courts get involved in this, they seem to make it worse. One really good answer would be to say, actually, the establishment clause just isn't implicated here. Go back to what Barry said, courtesy and decency, those things should make people be nice about their prayers and be inclusive, but it shouldn't be government editors who do it.
GJELTENLet's go now to Terry who's on the line from Raleigh, N.C. Good morning, Terry. Thanks for calling "The Diane Rehm Show."
TERRYGood morning. I'm wondering several things, but I'll give you two.
TERRYHow this rubs against free speech and freedom of religion. And also I find it really interesting that we're talking about coercion when the law is coercing religion into what and what is not fair, right, or just. I mean, we are talking about a different kind of coercion. And my observation has been that atheism and agnosticism are very much religions. So how is it different if they say that I can't pray -- how is that different from the coercion arguments you're making, keeping me from doing something which, in fact, encroaches on my beliefs based on yours?
GJELTENOK. I'm going to -- Jeffrey, quick answer because we're nearing the end.
ROSENThe courts basically said there's an atheism exception to legislative prayers. So it's OK to have religious prayers that don't include atheists. They just have to be basically nonsectarian. But, more broadly, the answer to your question is that's the very reason for keeping the government out of religious expression so that private individuals can be as religious or as nonreligious as they like. And the previous caller wants to put a cross on his front lawn. He should absolutely be allowed to do that, but the government should not be allowed to put a cross in its courtrooms.
GJELTENAnd, Barry Lynn, the caller also mentioned that there might be a little bit of conflict here between freedom of speech and the clause prohibiting the establishment of a religion because sort of one -- you can imagine the case here where there's opposition between the two.
LYNNThere is, although freedom of speech is not constrained by something like the so-called establishment clause. In other words, we can't establish a religion in this country. It's clear that all of us agree to that. I think, of course, that the establishment principle means much more than that. The truth is we can establish other things. We have political parties. That's different than establishing religion.
GJELTENBarry Lynn is executive director of Americans United for Separation of Church and State, also the author of "Piety & Politics." My other guests were Mark Rienzi, professor of constitutional law at Catholic University of America and senior counsel at the Becket Fund for Religious Liberty, and, from WHYY in Philadelphia, Jeffrey Rosen.
GJELTENHe is the coeditor of Constitution 3.0, the legal affairs editor at The New Republic, the author of "The Supreme Court: The Personalities and Rivalries that Defined America". That's in addition to his law professor duties. I want to thank you all for joining us. I'm Tom Gjelten. Thanks for listening.
Most Recent Shows
The world reacts to Brexit: European Union leaders plan for Great Britain's departure and investors brace for more uncertainty, as the U.S. considers economic and strategic implications.
The U.K. votes to leave the European Union. Heavy fighting continues in parts of Fallujah as Iraqi forces seek to retake all of the city from ISIS. And in Venezuela, food shortages spur looting and rioting. A panel of journalists joins guest host Susan Page for analysis of the week's top international news stories.
The Friday News Roundup: House Democrats stage a sit-in to push for a vote on new gun laws. Campaign finance reports show Donald Trump with much less money and staff than Hillary Clinton. And a federal judge in Wyoming strikes down an Obama administration safety rule on fracking. A panel of journalists joins guest host Susan Page for analysis of the week's top national news stories.