The Supreme Court decided Town of Greece v. Galloway, 12-696 (scotusblog/slip. op.), today.
Last year, we authored an “amicus” or “friend of the Court” brief concerning this case for the Ethics & Religious Liberty Commission of the Southern Baptist Convention.
The ERLC is dedicated to engaging the culture with the gospel of Jesus Christ and speaking to issues in the public square for the protection of religious liberty and human flourishing. The Commission is headed by Dr. Russell D. Moore.
We first reacted to the opinion in a firm press release.
After reviewing the opinion and some other commentators, I think the initial analysis stands. Overall, the majority opinions tracked the view of the facts, history and law suggested in our brief.
Significantly, the majority clarified that the prayers are the prayers of the individual minister: “The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths.” (slip. op at 12). If the Court had found invocations to be government speech, it is unlikely to have provided protection to sectarian prayers.
Justice Kennedy’s opinion also contains a remarkable sentence about the separateness of government and religion. “Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define…” Slip. op. at 23. That acknowledgement becomes important when considering that some state courts are suggesting that the “price” of citizenship and commerce is a limit to some religious expression.
While those two principles are just right, they will limit Town of Greece’s broader impact. It clarifies a small section of jurisprudence about government’s relationship to longstanding religious traditions. But it is also difficult to find other traditions involving this mix of government recognition of private speech.
Greece probably gives some protection to Military chaplains, who, like Congressional chaplains, are paid by the state to provide services to Government. But, like the legislative chaplain, the services are of the Chaplain’s “own God,” and not a ceremonial, governmental deity. Beyond chaplains, Greece might clear up some issues in monument cases, such as those questioning the placement of large cross monuments on public lands.
But, unlike some others who have said the decision significantly alters the church-state balance, or radically elevates coercion, I don’t think this opinion gets there. This was about balancing the risk of misunderstanding by infrequent participants that an invocation is private speech, and a 2nd Circuit rule that required government to essentially edit or rebut prayers.
On these facts, I think this was a very good balance, protecting speech and preserving rights.