The decision by the U.S. Supreme Court this week allowing Christian clergymen to lead prayers at the opening of government meetings in an upstate New York city has split communities in Minnesota and elsewhere. (“Green light on prayer gets ‘amen’ from cities,” May 7).
Many observers have viewed the court’s narrow 5-4 ruling in Town of Greece v. Galloway as a breach of the long-established separation of church and state and violative of the First Amendment clause prohibiting establishment of religion, contrary to those who see the ruling as vindicating another provision of that amendment protecting the free exercise of religion.
The majority opinion did not really rest on either prong, but upheld the town’s practice as consistent with the nation’s “history and tradition.” While that decision is problematic for many objectors, including four dissenting justices, it is the concurring opinion authored by Justice Samuel Alito that is even more troubling. In his concurrence, joined by Justice Antonin Scalia, he slighted the dissenters (three of whom happen to be Jewish) for their “niggling” outlook, suggesting that it is not a very important matter. He goes on, in the most disconcerting passage of the opinion, to observe that sectarian prayers are not offensive because only about 3 percent of the city’s 94,000 people are Jewish and an equal amount of other non-Christian faiths.
The implication, of course, is that cleric-led Christian prayers are permissible because the majority of the community apparently is of that faith. In so doing, the opinion endorses the position that religious views can be imposed upon those of other faiths, or not faiths at all, based upon the preference of the majority.
But this conflicts with the rationale of the other four justices who ruled in favor of the township. Justice Anthony Kennedy, writing for the court, explained that the “First Amendment is not a majority rule.”
The Alito-Scalia view will undoubtedly be cited and ruled upon by prayer enthusiasts and their advocates in future disputes. But the case, as viewed through that prism, sets a bad precedent. Under the Alito-Scalia reasoning, racial segregation would be permissible in a community if “only” a small number of its residents, say 3 to 6 percent, were African-American. Or a municipality could prohibit retail services to gays or lesbians if they constitute just a statistical blip in the town’s population.
This pernicious attitude may, unfortunately, beget the slippery slope that becomes the legacy of the Greece case.
Marshall H. Tanick is a Minneapolis constitutional law attorney and educator.