Prayer, the Supreme Court, and Separation

Over the years, I have been and continue to become involved in advocacy for the separation of church and state. Reform Jews are particularly strong in their advocacy in that direction and many have expressed concerns about the recent US Supreme Court decision regarding prayers offered at city council meetings in Greece, New York. Such prayers have regularly involved the use of language specific to Christianity and often clearly appear to urge listeners to adhere to Christian beliefs. In fact, one would have to go out of his or her way to deny that Christianity is in fact the established religion of Greece, New York because all such prayers are given by Christians.

As I understand it, a solution was proposed in which it was argued that prayers could be offered as long as they did not advocate for a specific religion or that clergy of other faiths could be brought into Greece from other locales in order to provide diversity. The city challenged this argument which had been upheld by a lower court as a means to counter the de facto establishment of religion and the case went to the Supreme Court which decided in favor of Greece, NY, sending shock waves through the Separation of Church and State advocacy community.

In recent years, the discussion of Separation of Church and State has primarily focused on removing religious influence on state based functions. Essentially, such efforts have promoted the concept of a secular government, a government devoid of religious based action and bias. "Freedom from Religion" has been at the basis of this movement which argues that the basis of the anti-Establishment clause of the US Constitution mandates that view.

It would make sense based on this understanding to ban all official prayers in the context of governmental activities such as city council meetings or proceedings of state or federal legislatures for example. One must question whether or not prayer can ever be devoid of advocacy for a particular kind of faith if not for a particular faith. To argue that generic theistic prayers are acceptable but prayers that are specifically Christian are not would certainly raise concern about the violation of the free exercise clause at a minimum and potentially also the right of Free Speech.

The First Amendment reads:

Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. 

Politically, Progressives tend to stress the importance of the anti-Establishment clause, whereas Conservatives tend to stress the importance of the Free Exercise clause. Our Supreme Court currently leans 5-4 Conservative and that almost by itself explains the decision handed down this week, though I will explain in more detail. There are many cases where the two clauses conflict and the case of Greece, New York is certainly one of them.

What happens in Greece, New York regularly appears to violate the establishment clause while not violating the free exercise clause, whereas the solution proposed by those opposing the City Council's practice would appear to adhere to the anti-establishment directive, but would violate the free exercise clause. In other words, in this specific case, which does not address whether or not such prayers should ever take place, the question, based on the proposed solution, seems to have been about how one may pray rather than being about whether or not one may pray in that context. The practice of offering a prayer at all was never questioned.

To put this argument into the context of Separation of Church and State specifically, two concerns arise:

1. Should there be prayer at state functions? This action clearly violates "separation", but does not necessarily violate "anti-establishment," unless no diversity is present in which case it likely does.
2. Should there be restrictions imposed on the religious content of prayers offered? Doing so would appear to violate the Free Exercise clause.

 Here's a direct quote from Justice Kennedy's opinion in the Greece, NY case:

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and sensors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.

This is in accord with the Free Exercise clause, ie keeping state out of religion. Telling a minister that he cannot represent his tradition would in fact be state interference in religion and, I would add, which Kennedy does not, in the context of both mandating prayers and requiring basic God language, could functionally establish Deism as the state religion which would be a violation of the anti-Establishment clause as well.

As I see it, the question for advocates of Separation of Church and State is truly focused on whether or not such prayers should take place at all with the clear understanding that the context of such prayers being offered overwhelmingly or even exclusively by Christian clergy will promote the establishment of Christianity as the religion of the government.

The fact that it is not within the court's purview to require the council to bring residents of other cities to offer prayers so as to provide diversity and avoid de facto establishment of Christianity as the faith of the city and that the court rightly defends the free exercise of religion does not excuse the fact that without diversity the existence of prayers of similar nature from a single faith establishes that faith as the government's religion. In other words, the court cannot demand diversity or determine the content of prayers, but neither can it allow the establishment of a government backed religion which is the case in Greece, New York.

This case was about how prayers were offered. It was a free exercise case. The next one will argue that without accommodation for diversity, the allowance for prayer in this type of context is de facto establishment. In order to follow the US Constitution's directive, a city council will have to either provide diversity or not have such prayers as the latter without the former necessarily results in establishment.

Marriage Equality and the Journey Ahead

This week, the Supreme Court ruled in favor of those advocating marriage equality twice, by ruling that the Defense of Marriage Act or “DOMA” was unconstitutional and by not choosing to overturn the 9^th Circuit Court’s ruling that Prop 8 in California was un-Constitutional.

While I certainly appreciate these decisions, I have found my joy tempered for a number of reasons. First, it appears that the primary reason that DOMA was ruled un-Constitutional was that the court believed that the Federal government overstepped its bounds and took action on something reserved for the states.

 The court held that DOMA "because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage." DOMA’s "demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law," the majority ruled. "This raises a most serious question under the Constitution’s Fifth Amendment." Huffpost

In other words, while those marriages performed in Iowa will now be recognized by the Federal government, there is no mandate that other states must allow or recognize same sex marriages.

As for the refusal of the Supreme Court to rule on Proposition 8 and to overturn the 9^th Circuit Court’s ruling, Chief Justice Roberts, writing for the majority, stated that

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” Huffpost

It is important to note that this 5-4 ruling was not the traditional 5-4 split between Conservatives and Progressives, but rather included a mix of both with Roberts and Scalia joining Breyer, Kagan, and Ginsburg in the majority. The fact that the court did not hear the appeal limited the impact of the case to California alone.

The court did not declare all of the Defense of Marriage Act un-Constitutional, nor did it offer a ruling on Prop 8, potentially expanding the decision so that it would prevent other states from enacting similar legislation. There is a long way still to go in the fight for marriage equality.

On Wednesday, the Reform Movement issued a statement that I would like to share with you tonight:

Today’s Supreme Court ruling on marriage equality is a significant victory for the protection of Americans’ civil rights. No longer will lesbian and gay couples remain invisible to the federal government; no longer should there be doubt about the legal legitimacy of these partnerships.

The Defense of Marriage Act (DOMA), which we vigorously opposed when it was first considered, has been an offensive and discriminatory measure since its passage in 1996. Since then millions have been denied fundamental rights because of the impact of this ill-advised law. Though that law still stands, today’s ruling in Windsor v. United States promises to lessen some of its most damaging effects. By striking down Article Three of DOMA – a section of the law that the Obama Administration stopped defending several years ago – the Court has enabled legally married same-sex couples to receive the same federal benefits, rights and responsibilities as married heterosexual couples.

Sadly, too many couples across America are still denied the fundamental right to marry. The Court’s ruling in Hollingsworth v. Perry effectively expands that right to tens of millions more Americans. The Court missed an opportunity to take a stronger stand for marriage equality today, yet it is a step toward greater civil rights for millions of Americans.

There is no more central tenet to our faith than the notion that all human beings are created in the image of the Divine, and, as such, entitled to equal treatment and equal opportunity. Many faith traditions, including Reform Judaism, celebrate and sanctify same-sex marriages. Thanks to the Court’s decision, the federal government will now recognize these marriages as well, while still respecting the rights and views of those faith traditions that choose not to sanctify such marriages.

Inspired by our Movement’s longstanding commitment to civil rights, we joined in amicus briefs to the Court in both the Perry and Windsor cases. We look forward to the day when full civil marriage equality is the law throughout the country, reflecting our nation’s historic commitment to the civil rights of every individual. In the meantime, today’s decisions will inspire us to continue to seek justice for all.

While some have said Shecheheyanu, I don’t think we’ve arrived at that day yet. We certainly should not be saying, “Dayeinu.” This isn’t enough.

For the past two days, I have found myself smiling, sometimes with a tear in my eye, as I hear or read the stories of those loving couples who will find their lives improved because of these court decisions. But I have also found myself sickened by some of the commentary that I have heard and seen. I know beyond any doubt that those who wish to discriminate and those who hate will ratchet up their efforts in the months ahead. The leading opponents to same sex marriage are not all right wing Christian Fundamentalists with whom we have rarely worked on social issues. Instead we find the Catholic Church, among our closest of friends in many social efforts, taking the lead.

Cardinal Timothy Dolan, head of the United States Conference of Catholic Bishops (USCCB), referred to Wednesday’s decisions as “a tragic day for marriage and our nation.” Blasting the Supreme Court for dealing “a profound injustice to the American people,” Dolan flatly asserted, “The Court got it wrong. The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so. The preservation of liberty and justice requires that all laws, federal and state, respect the truth, including the truth about marriage.”

Pat Archbold at National Catholic Register wrote:

With the universal legal recognition of same-sex marriage a fait accompli, the next fight will on the Church doorstep. The next battle will be to force Churches, most particularly the Catholic Church, to recognize and conduct same-sex marriage. The refusal to do so will result in a series of escalating legal and financial ramifications.

Eventually, because of its refusal to recognize immoral unions as marriage, the state will refuse to recognize Church marriages. As a result, more and more people will bypass Church marriage altogether, further marginalizing faith in this country. This effort is and has always been a war against religion and in particular a war against the Catholic Church. Right now, it is a war we are losing and after today, perhaps it is fair to say that we lost.

Breitbart

Those of us who believe in a strong separation of Church and State and in the Freedom of Religion will stand up and defend the rights of others to not believe what we do and against all who would press their religious beliefs or anti-religious beliefs on religious organizations. In fact, in our minds, that is exactly what the Supreme Court has done in removing these restrictions upon those of us who support Marriage Equality, allowing those who support marriage equality to do so without infringement. The court did not issue any mandate demanding that religious groups that do not support same sex marriage must now do so. 

We may well be headed toward a full separation of the performance of religious based marriages and legal state and federally recognized unions. In fact, civil unions based upon secular laws and applying to property and benefits are most likely ahead. In most Western nations, people wishing to get married go to the state to get a civil union and then, if they choose, have a religious marriage ceremony.

Meanwhile, the Catholic Church is far from alone in its condemnation of the decisions.

The Traditional Values Coalition said that civilization eroded today. And former Arkansas Governor Mike Huckabee, now a Fox News personality, declared that Jesus wept. Breitbart

I came across several responses to Huckabee saying that “Jesus’ had tears of joy.”

What I find most troubling in dealing with all of this is that while we struggle to find reasonable discourse on many issues and we strive to hold discussions with a sense of consideration and respect for the views of the other and for others as such, in this case all too often responses have been not only disrespectful but disgusting and hateful. Not only has the word “sin” been thrown around indiscriminately over the past couple of days, something which at least could be discussed in a religious context, but advocates for equality such as myself were accused of doing Satan’s work, promoting evil, destroying society, destroying families, destroying America. In the face of that, how can I truly rejoice?

I’m happier than I would have otherwise been, but I’m not ready to declare victory yet. The other side recites the words of John Paul Jones, “I have not yet begun to fight.” We should not yet begin to rejoice.

I find it all too appropriate that this week’s Torah portion is Pinchas. It is one of my least favorites. In it Pinchas and the people are said to have been blessed by God because Pinchas was righteous. What did Pinchas do to earn that blessing? He killed an Israelite and a Midianite woman because he believed their relationship to be an abomination.

We do not believe our texts to be the word of God and we challenge what they teach us. Others do not. We have a long way to go in the struggle for marriage equality and even a longer way to go in the struggle for respect and care for all of those created in the image of God.

We are not yet nearly as Moses standing upon Mount Nebo overlooking the Promised Land. Instead, we are more like the Israelites leaving Egypt before ever reaching the Reed Sea: granted freedom but pursued by those who would take it away and with a long difficult journey ahead.