A Post from a Second Class Citizen

    I want to follow up on Eric Muller’s short complaint yesterday about the Town of Greece case. I, too, feel that, for the first time in my life as an U.S. citizen, the doors of government are closing on me because of my religion.

    To be fair, the case is not affecting me in a vacuum. The recent attacks and murders in Kansas City where people were killed allegedly because the assailant perceived them to be Jewish has an impact. The recent flyers notifying Jews in Eastern Ukraine that they were required to register with their town merely because they were Jews has an impact. The fact that a family member’s synagogue needs an armed police guard for Saturday services has an impact. The fact that, in my state, being a member of the Anti-Defamation League serves to disqualify you from service on the bench has an impact. But so too does a case that tells me that history is the best judge of the boundaries of the Establishment Clause. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Town of Greece, New York v. Galloway, No. 12–696, slip op. at 8 (Sup. Ct. 2014). Let’s look at this history: the Crusades; Inquisition; hundreds of years of European wars over religion; pogroms throughout Russia and Eastern Europe both before and after World War II; religiously-based conflicts in India, Yugoslavia, Sudan, Israel/Palestine, Armenia, and numerous other countries around the world too numerous to list; and, of course, the Holocaust.

    For at least the last 1,000 years, we have been killing each other because of religion. The great hope for the U.S. constitutional democracy was that, by removing government from the religion game, we could put this history behind us. Unfortunately, the Supreme Court has started a process of disenfranchising U.S. citizens based on religion. To attend a government meeting in Greece, New York — and soon in many other towns throughout the U.S. — one must first now accept a call to prayer that will serve to define the majority’s view of proper religious behavior. With no Jewish, Muslim, Buddhist, or Hindu houses of worship in Greece, New York — and in many other towns throughout the U.S. — the prayers will be Christian.

    The Court’s majority seem to think that sectarian prayer will improve the process of government. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 14. How does one religion’s prayer trigger “shared ideals?” Why would a minority member feel that a “common end” will be easier to achieve now that someone else’s religion (or for the atheist, religion itself) has been proclaimed as dominant? No, the opposite occurs. The minority is being instructed — “You are only here because we tolerate you, but don’t, not even for a minute, believe that you are a member of the community.”

Comments

[anon]

Could not the same be said of the opening prayer for the SCOTUS?

[Ralph Clifford]

To anon: Yes, particularly from the perspective of anyone who does not recognize the concept of "God."

[anon2]

I sympathize with your concerns, but how can you say "for the first time in my life"? The majority has been pushing Christianity on the minority here since, well, the beginning.

[Orin Kerr]

Ralph, did you also feel like a second class citizen when the Supreme Court decided Marsh v. Chambers in 1983? Or did Marsh allow you to be a first class citizen?

[Ralph Clifford]

To anon2 & Orin:

I'll respond to both comments collectively as you are raising similar questions. I do not think that Town of Greece by itself has served as a sudden transformation; indeed, my original post indicated that my reactions to it are in the context of increasing antisemitism in the U.S. and world. Without a doubt, Christianity pushes for more dominance. My understanding is that many of the Christian churches include proselytizing as part of their fundamental mission. While they are unlikely to find me interested in their message, I have and will continue to fight to insure that the government does not interfere with this process. A church and its members must have the right to proclaim their messages.

It is very different, however, when the government does the proselytizing. If I don’t like a particular church’s message, I can avoid that church — I cannot avoid the government.

So yes, I have been aware of the Marsh case since it was decided. It, too, disturbed me, but to a lesser extent for two main reasons. First, when it was decided, it was not in a period of increasing antisemitism. It was easier to ignore because it seemed to stand alone. Second, it was easier to put Marsh to the side as it only addressed prayer in the context of a state legislature. While the symbolic importance of allowing prayer in the state house did not escape me, the practical aspect of seemed small. Legislatures are not bodies that are routinely open to the citizens of the state for their active participation. In other words, it was easy to assume that the purpose of the prayer was truly for the legislators themselves.

There is a difference between the legislatures in Marsh and town-level governing panels in Town of Greece. People do not bring their business directly to the floor of the legislature, but they do bring their business directly to the town-level government. As an example, I serve on the zoning board for my town. At an average meeting, a couple dozen citizens present their applications for variances and the like directly to the board. Under Town of Greece, my town can now impose a sectarian prayer on all of these citizens as the process begins. For any non-adherent, the message is not one of inclusiveness. If I were an applicant who did not share the particular religious views being proclaimed by the zoning board, I would have to wonder whether I would get a fair hearing.

[Orin Kerr]

Thanks for the response, Ralph.

To the extent one is rendered a first-class or second-class citizen by a Supreme Court decision in light of changing levels of anti-semitism, isn't the relevant issue the amount of anti-semitism in the U.S. rather than in the world? If so, the trends inside the U.S. strike me as on the whole quite positive. I can't think of a historical era in which there was less anti-semitism in the U.S. See, e.g., http://www.jta.org/2014/02/18/news-opinion/united-states/anti-semitism-in-america-today-down-but-not-out And notably, even the 1/3 of the Supreme Court Justices who are Jewish (or at least of Jewish origin, in Breyer's case) seemed to agree with the result in the Marsh case.

[anon2]

When my seventh grade public school teacher spent five minutes explaining how the pledge was "one nation under God," not "one nation, under God" (with a pause), I knew I was a second class citizen.

[Barry]

Orin Kerr: "Ralph, did you also feel like a second class citizen when the Supreme Court decided Marsh v. Chambers in 1983? Or did Marsh allow you to be a first class citizen?"

Orin, IANAL, but to me the big thing was that the SCOTUS seemed to invent a distinction, 'public' vs. 'legislative', and then stuck the prayers in 'public', meaning they are *protected* by the First Amendment, but that nobody else is[1]. So a body can pick whomever they want[2], and then plead inability to control what they say[3].

[1] We're seeing a very cookie-cutter approach to the First Amendment; forgive me if I'm wrong, but Clarent Thomas seems to think that it applies to states (Citizens United), except where it doesn't (Town of Greece).

[2] BTW, it won't be 'christian', it'll likely be 'Christian', meaning those sects with political pull. Go up there as a Unitarian, and see if you get in anytime in the next decade.

[3] In reality, they'll *plead* inability, but they control who speaks.

[Barry]

"[1] We're seeing a very cookie-cutter approach to the First Amendment; forgive me if I'm wrong, but Clarent Thomas seems to think that it applies to states (Citizens United), except where it doesn't (Town of Greece)."

Wrong analogy; I meant that the SCOTUS Five zig-zag quite heavily, and usually in accordance with right-wing beliefs.