Town of Greece Challenges Liberal Religion Clause Dogma
The decision in Town of Greece v Galloway takes the Supreme Court one step closer to overcoming decades of liberal anti-Christian bigotry. Kennedy's opinion for the Court attacks head-on the longstanding liberal doctrine that nitpicking by means of judge-invented tests somehow trumps the language of the Constitution, the framer's clear intent, and two centuries of American tradition. His emphatic conclusion: if a judge-created test produces results that conflict with the Constitution and tradition, the Constitution and tradition win. How refreshing. The malefactors are the activist judges, not the Framers.
Thanks to the 2nd Circuit, Town of Greece provided the perfect opportunity to take on the left's anti-constitutionalist nitpickers. The town's "crime" was to open town meetings with an invocation delivered by an unpaid volunteer from the community. Since the great majority of Greece's citizens are Christians, most of the prayers were delivered by Christian pastors. That offended two malcontents who took the town to court -- and lost.
Enter the 2nd Circuit, which reversed on appeal. These stalwarts threw down the gauntlet, adapting Sandra Day O'Connor's endorsement test to invent a brand new, undefined, and undefinable establishment clause no-no, the government-induced perception of "religious affiliation." This is O'Connor's closet liberalism in full flower. The decision to suppress religious speech is made in a logic-free zone entirely on the basis of imaginary evidence, in the false name of preserving religious liberty.
What a shock that the result should be paradoxical. The inescapable implication of liberal doctrine, it turns out, is the wholesale chilling of religious speech by exposing potential speakers -- on the slightest whim -- to the threat of judicial and/or administrative meddling, meddling that represents a massive government intrusion into the religious sphere. Kennedy nails this inherent contradiction and the hypocrisy behind it with laser-like precision.
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.
Liberal doctrine, and by implication the Lemon and endorsement tests liberals rely on to enforce their anti-Christian ideology, falls inevitably into this trap because the liberal interpretation of the First Amendment is fatally flawed.
The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.
This is refreshingly strong, but the best is yet to come. Kennedy will have nothing to do with the grievance industry psychobabble O'Connor exploited to sell her endorsement test. What we get instead is a call for chronically aggrieved anti-Christians to grow up.
In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.
The path Kennedy has been following arrives at its inevitable destination: a challenge to the gross misrepresentation of religious coercion invented by William Brennan and championed by Sandra Day O'Connor. O'Connor's endorsement test "perfected" Lemon precisely because it validates the assumption that a minority's -- and only a minority's -- discomfort, feelings of difference, or even simply disagreement with the majority is coercion, even when it is the result not of government action, but the religious speech of private citizens.
It is absolutely necessary and, thanks largely to O'Connor, far past time for the Court's conservatives to challenge this thoroughly corrupt liberal doctrine and the religious oppression it sells in the name of levelling the playing field. Town of Greece is a step in the right direction.
Mr. Stewart is a freelance writer living in Austin, Texas. He is writing a book on the establishment clause and welcomes feedback at firstname.lastname@example.org.