Kojo and Tom Sherwood chat with D.C. Council Member Elissa Silverman (I-At Large)
A divided Supreme Court ruled this month that town boards can begin their meetings with sectarian prayers. The 5-4 decision involving a New York town had an immediate impact in Maryland, where a federal judge lifted an injunction against prayer during meetings of the Carroll County commissioners. We explore debates about public prayer and local government.
- Adam Liptak Supreme Court reporter, The New York Times
- Monica Miller Attorney, American Humanist Association
- David C. Gibbs III President and General Counsel, National Center for Life and Liberty
- Eric Rassbach Deputy General Counsel, The Becket Fund for Religious Liberty
- Douglas Laycock Robert E. Scott Distinguished Professor of Law, University of Virginia Law School
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, place not race. 60 years after Brown v. Board, author Sheryll Cashin explores the enduring challenge of leveling the playing field in American education. But first, religion, free speech and the Supreme Court. Last week, a divided Supreme Court issued a landmark decision on religion and government.
MR. KOJO NNAMDIIn a five to four decision, the Court's conservative majority found that it is constitutionally permissible for local governments to open public meetings with sectarian prayers. The decision focused on a small town in upstate New York, but it had immediate local impacts. In Carroll County, Maryland and the Baltimore suburbs, Commissioners voted last week to resume their practice of opening meetings with prayers, which are said by Commissioners themselves. Joining us to discuss all of this is Adam Liptak. He is Supreme Court Reporter with The New York Times. He joins us in studio. Adam, good to see you again.
MR. ADAM LIPTAKAnd you.
NNAMDIJoining us from the studios of With Good Reason in Charlottesville, Virginia is Douglas Laycock. He's a Professor of Law at the University of Virginia Law School, who represented the plaintiffs challenging the prayer policy in Greece, New York, before the Supreme Court. Douglas Laycock, thank you for joining us.
MR. DOUGLAS LAYCOCKHappy to be here.
NNAMDIAnd joining us by phone is Eric Rossbach. He is Deputy General Counsel with the Becket Fund for Religious Liberty. Eric Rossbach, thank you for joining us.
MR. ERIC RASSBACHThanks for having me on.
NNAMDIYou too can join the conversation with a phone call to 800-433-8850, with an email to email@example.com. Or, you can send us a tweet @kojoshow. What do you make of the Supreme Court decision to allow prayer at public meetings? Do you think it makes sense or not? Adam, last Monday, the Court came down 5-4. In the case of Town of Greece vs. Galloway, the breakdown on the Court's vote was familiar, with a split between the conservative and liberal justices, but many believe this decision could have a major impact on debates about religion in the public square.
NNAMDIWhat was that case about, and why is it so significant?
LIPTAKThe question in the case was whether a town in upstate New York could open its prayers with a so-called chaplain of the month, who turned out, almost always, to be Christian. And who, in many cases, used quite sectarian, Christian language like references to Jesus' saving sacrifice on the cross. And the majority said that that was fine, that these kinds of prayers in legislative settings have a long tradition. That was really the main argument. And that people who were offended by it should suck it up, because they weren't being coerced to participate.
LIPTAKTrue, they were coming to a town board meeting, often to conduct business with the town. So they weren't mere spectators. They had to be there. But that was good enough for Justice Kennedy. Oddly, perhaps, given the Court's history, the objection from the four dissenters, from the Court's liberal wing, was not that there should be no prayer at all. They were okay with this kind of governmental, ceremonial prayer at that start of a legislative session. They just thought it should be more inclusive, and that it should stay away from distinctly sectarian language.
NNAMDIDouglas Laycock, you argued this case in front of the Supreme Court, representing Susan Galloway and Linda Stevens, two citizens who said their rights were violated by the prayer policy in the town of Greece. Tell us about that.
LAYCOCKWell, the two women who were plaintiffs in this case, one is Jewish, one is an atheist. They came to town board meetings to argue to the board about issues of concern to them. They were particularly concerned about the contract with the local cable company. And they found themselves in a very intimate environment, usually with only 10 or so citizens in the room. The invited minister stands up, turns his back to town board, faces the citizens, leads them all in prayer, and, as Adam said, leads them in, often intensely Christian prayers that talk about the Christian plan of salvation.
LAYCOCKAnd about two thirds of the time, end in "in Jesus' name." And the choice they're presented with is to feign participation in that prayer or to ostentatiously not participate in the prayer, irritate the town board just before they stand up to ask for help with the issue they've come to address the board about.
NNAMDIEric Rossbach, what was your reaction to the ruling?
RASSBACHWell, my reaction was that it actually made a lot of sense, given the history of our -- the Establishment Clause, what's been allowed, what happens in every legislature in the country. And happens in Congress, on a daily basis. And that's that there are prayers that open these sessions, that are brought in the names of many different religions. And so, for example, you know, there's Hindu prayers have been said in Congress and in state legislatures. In this case, there's a Baha'i prayer, Wicken prayer, Rabbi prayed as well. So, and if I could quibble a little bit with one of the characterizations from Adam.
RASSBACHWhich was that both sides of this, all nine justices, said that actually, faith specific prayer, that is, prayer in Jesus' name or what have you is okay, under some circumstances. What they disagreed about, in this case, was the specific policy at issue. But the distance between the opinions, the principal dissent and the majority opinion by Justice Kennedy was not actually that great.
NNAMDIWell, both sides in this debate can make a pretty strong claim that their side is about free speech. If a religious person wants to invoke the name of Jesus or Allah in public, that person may feel like his or her speech rights are being curtailed by government policies that prohibit it, but then again, if you are not a believer, or if you believe in something different, don't you also have a freedom from religion, Eric?
RASSBACHI'm not sure you do. There's actually a group named The Freedom From Religion Foundation, and I frequently disagree with them. I would say that, you know, think about it like the Pledge of Allegiance. Since 1943, people have had a right to stay out of that. So, and there's a famous case involving Jehovah's Witnesses, who did not -- they believed that saying the Pledge of Allegiance is a form of idol worship. And back during World War II, they were being thrown in jail for doing this, for objecting and not saying the prayer.
RASSBACHAnd the Supreme Court ruled, in the middle of World War II, that you did not have to be, you could not be forced, under the First Amendment, to say that prayer. Sorry, say the Pledge. But the remedy there was not that everyone else had to be quiet. So, there was right to remain silent, so to speak, but there wasn't a right to silence others. And I think that's the right outcome in this kind of situation, where you have disagreement, of course, religious disagreement is always going to be with us. The question is, you know, does it go to -- do you have to silence everyone when you disagree with the content?
NNAMDIWell, Douglas Laycock, you are known as a pro-religious individual. You support the right of people to run their businesses according to their religious beliefs. What's different about this case for you?
LAYCOCKThis case is about the religious liberty of all the citizens of Greece. And the prayers that are given at these town board meetings bear no resemblance to the Pledge of Allegiance today, with "under God" in it, or the Pledge Of Allegiance as it existed in 1943, in the case Eric talks about, when it was a purely political and patriotic statement. And "under God" had not yet been inserted. The saving sacrifice of Jesus Christ on the cross is not a passing reference to religion.
LAYCOCKIt is intensely Christian. The idea of God having a son is blasphemous to most Jews. Jesus promises eternal life to his believers. He threatens eternal damnation to everyone who doesn't believe the story that Christians tell about him. The prayers that were delivered in Greece are profoundly divisive. And the ministers, of course, have free speech and free exercise rights. They can pray however they want when they pray in their private capacity. But when they're invited to the town board to speak on behalf of the board and give the official prayer and open the meeting, they become government agents.
LAYCOCKThey are subject to the same limitations that the government is subject to. So, I would absolutely defend their free speech and free exercise rights to pray however they want. But not when they're imposing that prayer on citizens of every faith and of none.
NNAMDISpeaking of history, Adam Liptak, Justice Kennedy's majority opinion noted that prayer has always played a public role in American public life, and his opinion cited the work of Michael Myerson, a University of Baltimore Law Professor, who wrote a book called, "Endowed By Our Creator: The Birth of Religious Freedom in America," but Myerson actually says his work was taken out of context. How did the founding fathers approach religion in public?
LIPTAKYou can look at two different strains. On the one hand, from the very first Congress, there has been this kind of ceremonial prayer. So the tradition goes way back and most State Legislatures do it. It may be different in kind and different in context and different in setting, as Doug was suggesting from a town board meeting. So you have that kind of long tradition. But then you also have the founding generation, Madison, Washington, Jefferson, who were quite careful to keep explicitly sectarian language out of public life. So, you could argue this backwards and forwards.
NNAMDIOn to the telephones. Here is Steve in Washington, D.C. Steve, you're on the air. Go ahead, please.
STEVEGood morning. Good afternoon. I just wanted to say that this case and what it allows really illustrates the presence of a Christian privilege that exists in America, similar to white privilege and African-Americans are aware of that. And male privilege and all of our women are aware of that. And it's a privilege that exists because of the position of power, tradition or the majority of the group getting the privilege. And they almost always deny it and protest it. And that's what we're seeing here. It's an example of Christian privilege, which is as bad and as wrong in America as white privilege and male privilege is.
NNAMDIWe can't help observing, Adam Liptak, that the Supreme Court is, at this point, consists of six Christians and three Jews, I think.
LIPTAKAll the Christians Catholics.
NNAMDIAnd all of the Christians are Catholics, and that the majority opinion was written by, well, five Catholics.
LIPTAKThat's true. Justice Sotomayor, a Catholic, was on the other side with the three Jewish members. I'm not going to be quick to imbue a religious motive to a legal decision, but you're not alone in making that observation.
LAYCOCKI view it the same way Adam does. You know, they made these decisions because they're liberal and conservative, I think, not because they're Catholic and Jewish. But it is much easier for the Jewish justices to understand the alienating effect of these prayers.
NNAMDIAnd, in your case, Eric Rossbach?
RASSBACHI also agree. I mean, I think it's a little bit of a strange comment that's been made by a lot of people, because you don't really -- you know, you can make an argument that, well, they decided the patent case one way, and there were so many Catholics on one side and so many Jews on the other. I think it's just a factor of the way the Court's made up right now. You can come up with any sort of analogy you want.
NNAMDIOkay. We're gonna take a short break. When we come back, we will continue this conversation. If you've called the number, stay on the line. We'll get to your call. If you'd like to call, the number is 800-433-8850. Where do you place the balance between freedom of religious speech and freedom from other people's religious speech? 800-433-8850. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're exploring recent court decisions involving religion and the public square with Adam Liptak of the New York Times, Douglas Laycock from the University of Virginia Law School and Eric Rassbach from the Becket Fund for Religious Liberty. Last week when the Supreme Court issued a decision allowing prayer at public meetings, it had an immediate local effect in suburban Maryland.
NNAMDICommissioners in Carroll County have resumed their practice of opening meetings with denominational prayers. That practice has been challenged in federal court and we are joined now by lawyers representing the county and citizens opposed to public prayer. David Gibb, III is president and general counsel of the National Center for Life and Liberty. He is representing commissioners on the Carroll County Board. David Gibbs, thank you for joining us.
MR. DAVID C. GIBBS IIIIt is certainly my pleasure to be with you.
NNAMDIAnd Monica Miller is an attorney with the American Humanist Association which has challenged the county. Monica Miller, thank you for joining us.
MS. MONICA MILLERYes, it's my pleasure as well.
NNAMDIMonica Miller, last week a federal judge lifted the injunction against Carroll County commissioners that had prevented them from opening meetings with prayers. Why did you oppose this practice and what is your reaction to the latest developments?
MILLERWell, it's our position that the Town of Greece case really didn't require the judge to lift the preliminary injunction largely because of the actual differences between the Town of Greece case and the Carroll County case. And the most significant difference that we pointed out in our most recent motion for the judge to reconsider his ruling, is that the commissioners here are the ones delivering the prayers.
MILLERAnd they're not doing that pursuant to some all inclusive policy where invitees of the community, either clergy members or really any member of the community can deliver a prayer, but it's rather five commissioners doing so on a rotational basis in which all five have already declared that they are personally Christian and that they, you know, want to pray in a certain way that proselytizes Christianity.
MILLERAnd so I think the history of their practice and its very dissimilar nature to the Town of Greece case really requires the judge to give a little more thought into, you know, how Town of Greece should apply and how it doesn't apply in our case.
NNAMDIDavid, given the Supreme Court ruling involved the program where guest chaplains were invited to deliver opening remarks at town meetings, the Carroll County commission practice involves actual elected leaders saying the prayers. Do you see a difference?
GIBBS IIIThere's obviously a factual different but the Supreme Court ruling really affects all legislative prayers. There's really three ways that it's done. The one is where you actually hire a chaplain. And that was the original Marsh case back in 1983 when they were looking at the chaplain that had been hired by the Nebraska legislature. So that's a model.
GIBBS IIIOne model is, as Monica said, you can invite outside guests where they have to be selected with some fair neutral process, and they're allowed to offer the prayers or the solemnizing moment. And then the third model is where the elected officials themselves are allowed to pray or again, give the speech or the moment of silence or do what they feel led. And the accountability in that system is clearly back to the voters. And that's the Carroll County model. What they say is whoever is elected, anybody in the community that runs as properly elected, they then, on a rotating basis, are allowed to solemnize the moment how they deem fit.
GIBBS IIISo if it was a Jewish individual, a Muslim individual, a Christian individual, who's ever elected, it's then at that time in the meeting their opportunity to decide how the meeting should open. And the accountability there is really tied to the voters and the discretion of the elected officials to do things that would be in good taste. But I would have to respectfully disagree with my opposing counsel Monica. And I understand what she's trying to do.
GIBBS IIIThe Supreme Court put a lethal bullet in her case. I mean, there are cases in a lot of trouble. That's why the judge, on his own sua sponte motion eliminated the injunction. But she's trying to find a way factually around it. But the Supreme Court was strong and firm that the establishment clause of the First Amendment needs to be interpreted by the historical practices and understanding and notice that congress had appointed chaplains days after approving the First Amendment. And so I don't see her factual distinction. While she's a bright attorney to argue it, I don't think it's going to have any bearing on the case.
NNAMDIMonica Miller, tell us about the people you are representing. How have they been harmed by the Carroll County policy?
MILLERWell, they've been harmed in a number of ways. I mean, one is which -- you know, one of our plaintiffs is a Catholic and he subscripts very strongly to the Sermon on the Mount and the idea that prayer is to be private. And so it really affects his religious beliefs and his freedom of conscious when he attends government meetings that are delivering prayers contrary to his beliefs.
MILLERAnd it's his position that although nonsectarian prayers are equally valid of this command, I guess if you will, it's more offensive to him. It's more abrasive to his religious beliefs when the prayers are offered in Jesus' name because that's the belief that he believes in. And our other plaintiff who is an openly sort of a deist -- he's not an atheist but he's not a Catholic or a Christian -- he just finds that the prayers are divisive and makes him feel unwelcome in the county meetings.
MILLERAnd the same goes for our two other plaintiffs who one of whom has not really expressed her beliefs, but the other one is a humanist atheist. And of course her position is that these prayers don't include her and have actually been used by the commissioner as a way to sort of send the message to non-adherence and non-Christians that they're not welcome here. And I think that's really simplified by Commissioner Frazier's recent contempt where she said she was willing to go to jail over delivering Christian prayers.
MILLERAnd the commissioners have made statements, you know, to the public and elsewhere that they want to deliver Christian prayers. They're not saying this -- you know, they're not saying, we want to open our meetings in a way that's respectful or to solemnize the event. But they're using prayer as a way to make a political statement. And I think that's another distinguishing factor between our case and (unintelligible).
NNAMDIDavid Gibbs, the majority opinion in the case before the Supreme Court was written by Justice Kennedy but Justice Clarence Thomas wrote his own opinion, which appeared to question the broader underlying notion of separation of church and state. I saw a similar quote from one of the Carroll County commissioners referring to the, quoting here, "so-called separation of church and state." How do you and how does your client conceptualize that separation?
GIBBS IIIWell, I think what you see between Justice Kennedy who wrote for the majority and Justice Thomas is some disagreement over the level of coercion that would be required. And I think Justice Kennedy said it clearly that in the case there, the Galloway decision, the complainants there, the atheists, said the prayers gave them offense, made them feel excluded and disrespected.
GIBBS IIIBut Justice Kennedy writing for the majority said, offense 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. And so really what Justice Kennedy said is like, look we don't want coercion but let's be adults about this. We should be able to hear the prayers of different faiths. We should be able to realize that even though you're offended, it should not then become a constitutional lawsuit.
GIBBS IIIWhat Justice Thomas was indicating is, I don't know that the coercion factor even needs to be balanced. And I think he was wanting to go even broader in terms of saying religious liberty and free speech should be protected. And I do point this out because I think this is important for your listeners. If you have judges censoring prayers, you're really creating a religion, an establishment of religion that our founding fathers did not want to have happen.
GIBBS IIIAnd what you're really saying is, who has the right to decide? Is it the judge that decides whether the prayers are proper? Is it the individual legislators or the outside guests? And what the court did here is they said, look we're going to let everybody act like adults. We're going to use reasonable approaches but we are going to allow this practice that has occurred historically since the founding of our nation. The people who wrote the First Amendment hired chaplains and had sectarian prayers. And to insist that that somehow violates the First Amendment is historically inconsistent and is really an establishment of religion.
NNAMDIDavid Gibbs is president and general counsel of the National Center for Life and Liberty. Monica Miller is attorney with the American Humanist Association. Thank you both for joining us.
MILLERYes, thank you.
GIBBS IIIMy honor.
NNAMDIDouglas Laycock, one reason why the Supreme Court majority seemed reluctant to strike down this practice was because they saw a problem of government started deciding what kind of prayer is acceptable. Who would police what kinds of prayers were acceptable or sufficiently nondenominational?
LAYCOCKWell, I agree that that's a problem. And that's a problem caused by letting government into the prayer business. The only really clean solution here would be to eliminate the prayers entirely. But there is this tradition of prayer at bodies with legislative functions. No justice was interested in eliminating the prayers entirely.
LAYCOCKGiven that, the lesser of the evils is to require that the prayers be broadly nonsectarian. And clergy know how to do that. You know, they've done it -- they do it in the House and Senate every day. The House and Senate chaplains almost never invoke specific Christian tenets. Some of the guest chaplains do but the regular chaplains don't. Clergy know how to do this.
LAYCOCKIn Greece they never asked them to. And what the Supreme Court says is, not to worry. You never have to ask them to. They can be as heavy duty Christian proselytizing as they want as long as they don't explicitly call for conversion.
NNAMDIWell, this question for all of you. Where is all of this heading? Adam, I'll start with you. Earlier this year the Supreme Court heard arguments in Sebelius versus Hobby Lobby, a case that explored where the private companies could opt out of the federal requirement that they offer certain types of health care. Hobby Lobby is owned by a family which says its religious liberty is being violated by the requirement that it offer health coverage that includes contraceptives and abortion. Is this the next big decision that will have the most impact?
LIPTAKThe Hobby Lobby case may well be the most important, most watched case of the term. Hobby Lobby's chances of winning are good. I think we have a court here, and not only the conservatives, which is more comfortable than earlier courts with an increased role for religion in public life.
NNAMDITo which you say, Eric Rassbach?
RASSBACHWell, I hope Adams' right since I represent Hobby Lobby. I would add that I think that the narrowness of the difference between the majority opinion by Justice Kennedy and the principle dissent by Justice Kagan indicates that we could be moving towards a different basis for deciding establishment clause cases. And specifically it would be looking to that history.
RASSBACHYou know, what did the founders mean when they said establishment of religion? They obviously were much more familiar with it than we are, and try to rebase it on that as opposed to kind of judicial psychologizing, which I think is really -- I think that's actually the thing that creates the division and the fighting is a role for judges in deciding what is, you know, proper as opposed to just, let's just go back and look at what the founders were trying to do. What were they trying to prohibit when they said, no establishment of religion? I think that would be a better basis going forward. And I think the court is sort of groping towards that.
NNAMDIDouglas Laycock, my mother was raised as a Lutheran but she decided to switch to Episcopalian after a while. If she owned the company, could she arbitrarily decide that the policies of the company would change based on her own religious change?
LAYCOCKWell, generally no. Maybe on a few things, yes. You know, I think we should protect the religious liberty of the owners of Hobby Lobby and something that's important as paying for abortion. Not everyone views those pills as abortion, but they do and we have to respect the weight of that, even if we disagree with it.
LAYCOCKAnd similarly we have to respect the weight of the views of the citizens of the Town of Greece who want to participate in civic affairs without being reminded every month that their board believes in a religion that threatens them with eternal damnation. That's what this is about. The divisiveness comes from doing that month after month after month at meeting after meeting after meeting.
NNAMDIDouglas Laycock is a professor of law at the University of Virginia Law School. Thank you for joining us.
LAYCOCKYou're very welcome.
NNAMDIEric Rassbach is deputy general counsel with the Becket fund for Religious Liberty. Eric Rassbach, thank you for joining us.
NNAMDIAdam Liptak, any final words?
LIPTAKJust great to be here with you as always, Kojo.
NNAMDIThanks a lot. Adam Liptak is Supreme Court reporter with the New York Times. We're going to take a short break. When we come back, "Place, Not Race." Sixty years after Brown v. Board author Sheryll Cashin explores the enduring challenge of leveling the playing field in American education. I'm Kojo Nnamdi.
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