Town of Greece: Springtime for Atheists—and Us All

In May some of us were waiting, with apprehension and hope, for the outcome in the Hobby Lobby case; but we were lifted with relief–and with an unexpected delight—by the Supreme Court’s decision in Town of Greece v. Galloway.   We would have been grateful if the Court had been willing to do no more than sustain the practice of having invocations to God as the prelude to the town meeting in this small town in New York. As Justice Kennedy noted, the First Congress had moved to appoint chaplains only days after approving the language for the First Amendment. To pronounce those prayers as illegitimate now under the Establishment Clause would have marked a telling moment in driving religion entirely out of the public square. But instead of settling the case on that ground, the Court did far more: Justice Kennedy made it clear that these prayers did not have to be watered down to something so generic, so purged of the possibilities of offending, that they would be scrubbed of any identifiable religious character.   They did not have to be submerged in vague “non-sectarian” prayers offered merely to the “divine,” whether that was the God of the Bible or “forces in the universe.”

The decision was celebrated by many of my friends then as a notable win.   For at the very least, it put up a breaker against one current of political and legal erosion for the religious in this country.   The decision has been celebrated also as a landmark victory for the cause of “religious freedom.”   But we may be diverted by a trick-of-the-eye here. The decision in Town of Greece should bring the ringing of bells and some decorous dancing in streets, but if we attend closely to the holding of the Court, it is simply untenable to take the meaning of this case as a defense of “religious freedom.” But like Zorba the Greek, the case has a redeeming touch of madness: It did not offer a defense of religion as a distinct body of conviction and practice, which deserved to appreciated and celebrated, especially in the life of a republic. But it offered a deeper, wider protection of religion, running well beyond the matter of prayers before legislative assemblies.

In his opinion for the Court, Justice Kennedy managed to protect Christians with an expansive gesture: He would place them in the circle of a protected class that ran well beyond the religious.   The authorities in the Town had anticipated the criticisms aroused these days by prayers publicly offered. And so they had already sought to invite a wider diversity of views in the sounding of those opening appeals to high sentiments. As Justice Kennedy noted, “the town at no point excluded or denied an opportunity to a would-be prayer giver. …[A] minister or layperson of any persuasion, including an atheist, could give the invocation.” [Italics added.] A Wiccan priestess who had read about the case quickly tested the waters by offering her services—and they were accepted.

But no understanding of “religion” even faintly acceptable to the seriously religious in this country could encompass, in its definition, the rejection of theism. Large-natured the decision in Town of Greece certainly was, but taken strictly on its own terms, it cannot be represented coherently as defense of a “religious” liberty, without emptying religion of its meaning.

And yet, the four liberal justices in dissent in the Town of Greece were willing to strike down even this scheme for not being even more ecumenical in its sweep. Apparently, something lurking in the Constitution should have enjoined the authorities to move further afield to nearby towns in the search for a “diversity” of views even wider yet. But let us imagine a program of this kind designed to “honor religion”: two days a week we might pray to the God of Israel, or receive the Eucharist of the Lord who died on the cross, while on other days we burned incest to local divinities, invited in animists to sacrifice chickens, and wiccans to cast their spells of the season. Could this scheme be represented to the world as a civic ritual manifesting our “respect” for “religion”?   Or would it be quite the opposite?: Would the whole spectacle be grounded on the premise that these devotions could be equally “respected” or honored because none of them could be truer, with a higher claim to our respect, than any of the others? Which is to say, the whole project begins by refusing to respect the way in which these devotions and teachings have been understood, and found compelling, by those who hold to them.

Many of the religious, in their euphoria over the outcome, may not have noticed that Justice Kennedy moved in an expansive sweep by reducing “religion” to encompass atheism or the rejection of gods and God. And yet the atheists surely did notice. In different parts of the country atheists have experienced a new surge of energy as they’ve sought to take advantage of this new license conferred by the Court in Town of Greece. The Wall Street Journal, in the middle of July, noted the initiatives springing up in the land: Mr. David Williamson, of the Central Florida Freethought Community came forward to offer an invocation at the meeting of the Osceola County, Florida, board of commissioners. Attendees bowed their head as Williams appealed to a “spirit of goodwill” rather than the God of the Bible. Williamson has sent letters to 20 other counties, offering the same benign service. The Journal reports that in Portage, Michigan, south of Kalamazoo, Mr. Tim Earl, a self-described atheist, has already delivered three recent invocations. And as though we could have doubted it for a moment, even our friends at the Church of the Flying Spaghetti Monster are flying again: They are getting in gear to field members on a broad field to offer themselves for invocations and their parody of religion. Truly, the holding in Town of Greece has brought us Springtime for Atheists.

Henny Youngman once sympathized with the plight of the atheists: they have no holidays. But they have had, nevertheless, a roaring good time, and why begrudge them? For in the meantime, the joys of the atheists come with grounds of joy for the rest of us as well. For surely there has been no harm in many of these people, rising to the new spotlight, and yet trying, much in the way that clergyman have tried, to shape appeals that will not offend. And so they appeal, as clergymen often do, to notions of a common good, for the muting of self-interest, and the ties of civility among fellow citizens. The holding in Town of Greece did not exactly offer a vindication of religious freedom, but the justices wrought better than they knew. For without offending the irreligious, the Court has put in place protections for the religious that move well beyond the matter of invocations at public assemblies.

The Court is protecting now a freedom available to the religious, the atheists, and even to the enemies of religion. And what is it? A freedom to do what? Perhaps to offer public-spirited appeals in official settings dealing with the public business? Appeals directed to a common good, meant to cast its benefices on all? We would seem to have here a holding that, on matters of public business, in the life of the community in the public square, there should be no religious disability.   There should be no exclusion marked off distinctly for religion, as though religion was somehow less salutary or legitimate in the life of a republic than any other legitimate associations that have standing in the life of this polity.

When the matter is cast in that form, it may supply the doctrine that would yield a clearer and more intelligible decision on many other cases. We may think here of the condition of young James Zobrest in a case from the 1990’s:  Zobrest, as a student hindered with deafness, had the support of an interpreter at times in the public schools in Tucson, Arizona. That benefit flowed to him through both federal and State law.  And yet in the judgment of a County Attorney he lost that support when his family shifted him for the 9th grade to the Salpointe Catholic High School, a private school. Chief Justice Rehnquist wrote for the Court in striking down that judgment, but in going to the aid of the Zobrests, he let his judgment hinge on such questions as whether the grants to the school relieved the school of anything it was otherwise funding. For in that case, the public aid would not subsidize any religious programs. Rehnquist found some value in arguing that the aid here flowed to the students and his parents. When the case was seen in that way, the aid flowing to a religious school, in its religious mission, was negligible.  Still, he preserved the lurking premise that there was something immanently questionable or possibly illegitimate in public monies supporting, even indirectly, a private religious school.

But why the need to treat the support of religion as though it were something corrosive, or detrimental, in the life of a republic? The holding in Town of Greece could possibly firm up the spine of the justices and augment their confidence in taking a line now far clearer: James Zobrest had benefits coming to him through federal and local law.   In the absence of these benefits conferred by the law, there was no principle that made it necessary for government at any level to spend public monies for private schools. But when those benefits were conferred by law, State and federal, it was nothing other than a disability based on religion that those benefits should be withheld from James Zobrest because his family shifted him to a Catholic school. In the same way we might say that if public funds may be granted to private schools such as Exeter and Andover, why should it not be available to a Catholic school? What is there in the ethic pervading a Catholic school that makes it somehow less fitting for the life of a republic than the ethic prevailing at Exeter and Andover?

What we may be seeing engaged here is nothing more than what we have seen in many other instances in our law:   Lawyers and judges come to understand the holding in the case as so closely tied to the circumstances in the case that they have a hard time seeing the principle that may apply quite as aptly to other cases more remote, with far different circumstances. I think here of the late, redoubtable Philip Kurland, at the law school at the University of Chicago, musing aloud in the early 60’s: How would that holding in Brown v. Board of Education, on racial segregation in public schools, possibly entail any judgment on segregation in public swimming pools? After all, weren’t we told that the wrong engaged in Brown v. Board depended critically on impairing the motivation and performance of black children in public schools? Was the argument now that, by barring black children from public swimming pools, the authorities were impairing the capacity of black children to learn?

If we were clear on why it was wrong, in principle, to create benefits and disabilities based on race, it would have been clear to us that we did not need a new principle when it came to racial segregation in a public swimming pool. There was no need to invoke a “constitutional right to swim.”

But the example bearing most directly on this argument may be that case so often cited by the Supreme Court to establish a “right to procreation”: Skinner v Oklahoma (1942). In that case the Court struck down a law in Oklahoma that provided for the sterilization of “habitual criminals,” people who seemed to be driven irresistibly to commit felonies of “moral turpitude.” The legislature, in a time of high confidence in eugenics, threw off any hesitations in pronouncing on the crimes quite likely to have a genetic basis.   As the legislature drew the line, three convictions for felonies were taken to mark a recidivism so pronounced that it could be explained most likely by a genetic cause. In this particular case, one would have to suppose, with a straight face, that there was a genetic disposition to steal chickens.

In later years, looking back on this case, the Supreme Court would cite it to mark a “right to procreation.”   In that way, this case could be arrayed among others citing a right to familial privacy (Meyer v. Nebraska) or a “right to marriage” (Loving v. Virginia), and they would all somehow sum up to entail the right to an abortion (Roe v. Wade). But of course a “right to procreation” was on its face bizarre. Could that “right” be invoked by a rapist?: Could he plea that he had a right to beget children, but that no woman would willingly agree to join him in the conjugal act of begetting? And we may forget all too readily that, in his concurring opinion, Chief Justice Stone had not been willing to rule out policies of compulsory sterilization if it could be proven in any case that a prisoner bore the potential to generate “criminal tendencies” in the offspring he might produce.

If the case were seen with a strictness that ran beyond the slogans, it could be seen more aptly as a case that put a severe burden of justification on laws that subject people to compulsory and irreparable surgery. If the holding had been seen in that way, it could have applied to many things apart from procreation and sterilization. It could have applied, for example, to the cases involving surgery on frontal lobes to induce quiescence in the violent.   Or perhaps even to certain forms of operational conditioning, ordered up to diminish the libido of people who are—shall we say?–sexually hyperactive.

If we see the holding in Town of Greece with a different lens, the holding works to protect the religious as it casts protections on us all, the religious and non-religious. In that respect it could deliver some of the same advantages that I’ve suggested for an alternative line of reasoning in the Hobby Lobby case.   I’ve argued in that vein, following the lead of Judges Janice Rogers Brown and Diane Sykes in other cases, that Hobby Lobby could have been won without putting the main and decisive accent on the “theology” of the litigants or the “sincerity” of their “beliefs.” Indeed, most critically, the case could have been resolved without reducing our understanding of “religion” to a cluster of “beliefs” detached from the claims of truth.

What was engaged there, as I have argued in this space, was a classic problem in our constitutional law: The government was imposing on private persons to bear, at their own, private expense, the burdens of what the government regarded as a public obligation. A Court that spotted this classic violation would not need to embark on a long voyage of “activism,” for it would not need to keep intervening to gauge and fine-tune the measures that formed the “least restrictive means” of accomplishing the ends of the government. The Court could simply invoke the discipline of constitutionalism and send the matter back to the Congress: The judges would not have to pronounce on the rank-order of interests of the government of United States and decide whether the government had a “compelling interest” in diffusing abortifacients and contraceptives in the land. That judgment would be left, as it should be, to the Congress. If Congress thought there was a compelling interest in distributing widely these products and services, then it could promote them with tax incentives, or even give them away and pay for them with public monies. But in that case the Congress would have to take on the political responsibility of justifying to the public the taxes that would be necessary in raising the money. A vexing matter, to be sure, but it is precisely by assigning these political burdens that the Constitution works to limit the reach of the government.

The late Fr. Neuhaus once raised the question of whether atheists could be good citizens. And by that he didn’t mean whether atheists could obey the laws. His question rather was whether atheists could give a moral defense of that regime that contained their rights. In his recent invocations, the aforementioned atheist David Williamson does not appeal to God, but to “we the people”: “Through the millennia we as a society have learned the best way to govern the people is for the people to govern themselves.” But where did that doctrine of natural rights, and government “by the consent of the governed,” come from?

Williamson may set up possibilities quite instructive—and delicious—for the religious who invite him in. The town fathers and mothers could simply provide, as a prelude to the invocations, a reading of the beginning of the Declaration of Independence. They could invoke the “Creator” who “endowed” us with “unalienable rights,” the Author of the Laws of Nature, including the moral laws. And in doing that, they might offer a gentle reminder that the notion of natural rights has been bound up since the beginning of the American regime with the recognition of the inequalities in nature: We make our way to the things that make human beings by nature equal by separating human things from the things that are either subhuman or superhuman.   As James Wilson had written, supreme power would be eminently justified for “Him who is Supreme.” But among human beings, those sublunary creatures, there could be “neither superiority nor dependence.” If those rights did not arise from nature, did “We the people” just give ourselves these rights as rights of positive law? And if so, would we not be quite as free to remove those rights, including those rights we may settle upon the atheists?

If my reading here is correct, the holding in Town of Greece wrought better than we had reason to hope, and accomplished even more than our friends have lauded it for doing. The lesson, and the case, may finally be put in this way:   Can we not see the ingredients of a better jurisprudence, and a jurisprudence running deeper, in a jurisprudence that would protect the religious as it would protect us all?

Mr. Arkes is the Ney Professor of American Institutions at Amherst College and Director of the James Wilson Institute on Natural Rights & the American Founding.

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Comments

  1. nobody.really says

    1. I embrace the gist of this post – that government should not discriminate against religious messages simply because they refer to God, or to religious doctrine. Thus I’m skeptical of the doctrine saying government should avoid “undue entanglement” with religion, in that it suggests a bias against religion that it has not applied more generally.

    Similarly, I’d say that government should not discriminate against messages from Coca-Cola simply because it refers to Coca-Cola or the soft drink industry.

    Rather, I’d suggest that government have a generalized bias against undue entanglement with everything that is not related to a bona fide governmental purpose. The question of “Is this speech religious?” would become irrelevant. The relevant question would be “Is this speech sufficiently related to a bona fide governmental purpose?” All governmental speech – religious, irreligious, anti-religious – would be subject to the same test.

    (This would arguably pose problems for government funding for the arts, to the extent that we understand art as a form of speech.)

    Thus, I’m puzzled by this assessment of Town of Greece:

    Mr. David Williamson, of the Central Florida Freethought Community came forward to offer an invocation at the meeting of the Osceola County, Florida, board of commissioners. Attendees bowed their head as Williams appealed to a “spirit of goodwill” rather than the God of the Bible.
    * * *
    [T]he joys of the atheists come with grounds of joy for the rest of us as well. For surely there has been no harm in many of these people, rising to the new spotlight, and yet trying, much in the way that clergyman have tried to shape appeals that will not offend. And so they appeal, as clergymen often do, to notions of a common good, for the muting of self-interest, and the ties of civility among fellow citizens.

    Did the Court conclude that government was entitled to impose content-based discrimination, selecting only speakers that would deliver a “goodwill”-based message that government officials wanted to hear? If so – HURRAY! This might suggest that government officials perceive a bona fide interest in promoting this kind of civility at public meetings, and are seeking to promote that civility without regard to whether the speaker was religious, irreligious, or anti-religious.

    But quite clearly, religious speech is not necessarily speech promoting good will. Given all the violence and persecution in the Mideast, today you can hear plenty of sermons on the need to stand firm and strike back against the foes of God and His People. If I understand Arkes correctly, he’s saying that government could engage in content-based discrimination against people’s messages, even when those messages are motivated by sincere religious views.

    Thus, the Court may have avoided the need have invocations —

    watered down to something so generic, so purged of the possibilities of offending, that they would be scrubbed of any identifiable religious character. They did not have to be submerged in vague “non-sectarian” prayers offered merely to the “divine,” whether that was the God of the Bible or “forces in the universe.”

    But the Court may nevertheless have authorized government officials to strain out of the speech anything they find inconsistent with – or even irrelevant to – the bona fide governmental purposes for which they have assembled. As the Soviets compelled a “social realism” on public artists, our government officials can impose “social goodwill” on public speakers. This may seem unpalatable — but in the absence of this governmental purpose test, we should prepare ourselves to hear advertisements for Coca-Cola before every high school graduation.

    • gabe says

      Careful with the “hooray”
      Although I share the feeling, I can readily imagine the outcome when the government manifests this interest. will we have a “code of goodwill-edness” determined by a bi-partisan group?
      But I think you also would object to that as you raise a good question – is the court allowing for content based scrutiny here. Hope not!

  2. nobody.really says

    2. Religious plurality in the public square:

    [L]et us imagine a program of this kind designed to “honor religion”: two days a week we might pray to the God of Israel, or receive the Eucharist of the Lord who died on the cross, while on other days we burned incest to local divinities, invited in animists to sacrifice chickens, and wiccans to cast their spells of the season. Could this scheme be represented to the world as a civic ritual manifesting our “respect” for “religion”? Or would it be quite the opposite?: Would the whole spectacle be grounded on the premise that these devotions could be equally “respected” or honored because none of them could be truer, with a higher claim to our respect, than any of the others? Which is to say, the whole project begins by refusing to respect the way in which these devotions and teachings have been understood, and found compelling, by those who hold to them.

    According to Edward Gibbon, “The various modes of worship which prevailed in the Roman world were all considered by the people as equally true; by the philosopher as equally false; and by the magistrate as equally useful.”

    Again, the point of government action – including inviting people to speak at government forums – would be to promote a bona fide governmental purpose. That purpose might include encouraging a spirit of goodwill. In contrast, it is unclear that government has a compelling interest in defending the special status of religion in the minds of its adherents.

    • gabe says

      A couple of musings here:

      “That purpose might include encouraging a spirit of goodwill.”

      On the surface this seems like a nice objective. Yet, if one looks at both our current and historical performance in this regard, it is questionable whether all can or would agree on “goodwill.” I will spare the examples as one can easily conjure them up. What Ms. Pelosi considers goodwill may very well include castigating her opponents as (enter your own term)- deniers, heartless etc. The same can be true for the right.

      1) do we truly want the government so involved?
      2) Was this not the historical / traditional function of the churches and / or civic societies which under the tsunami of governmental growth and intrusion has now effectively minimized these cultural actors?

      ” In contrast, it is unclear that government has a compelling interest in defending the special status of religion in the minds of its adherents”.

      Perhaps?

      Yet, I have been trying to fully grasp the difference between “conscience” rights and “religious” rights. Maybe you folks can help.

      Let us assume that there is an inextricable link between conscience and religion – that one can argue that religion is a particular manifestation of conscience rights. (maybe you could argue the other).
      The founders were quite clear in their respect for both conscience and religion.
      To support / sustain conscience, one may argue, they gave us the free speech protections of the 1st Amendment as well as “assembly rights.”
      Also in that same amendment they included a “religious protection clause.” Yes, I know it was actually a proscription upon the FEDERAL government to not establish a religion along the lines of the Church of England – but did it not both do more and imply more!
      I suspect that it did and it did so because the Founders believed that religion (of just about any variety) was an absolutely essential condition for the promotion and maintenance of the Republican government. (Again, I’ll skip the quotes – I think most of us here can scurry about and get them).
      Make a long story short, did not the founders intend to provide support for religious rights? Full expression, no hostile bias, etc. etc.

      What say you?

  3. nobody.really says

    3. Hobby Lobby and Zobrest:

    What was engaged there, as I have argued in this space, was a classic problem in our constitutional law: The government was imposing on private persons to bear, at their own, private expense, the burdens of what the government regarded as a public obligation. A Court that spotted this classic violation would not need to embark on a long voyage of “activism,” for it would not need to keep intervening to gauge and fine-tune the measures that formed the “least restrictive means” of accomplishing the ends of the government. The Court could simply invoke the discipline of constitutionalism and send the matter back to the Congress: The judges would not have to pronounce on the rank-order of interests of the government of United States and decide whether the government had a “compelling interest” in diffusing abortifacients and contraceptives in the land. That judgment would be left, as it should be, to the Congress. If Congress thought there was a compelling interest in distributing widely these products and services, then it could promote them with tax incentives, or even give them away and pay for them with public monies. But in that case the Congress would have to take on the political responsibility of justifying to the public the taxes that would be necessary in raising the money. A vexing matter, to be sure, but it is precisely by assigning these political burdens that the Constitution works to limit the reach of the government.

    As I’ve stated previously, I had a somewhat similar conclusion – but driven from a different understanding of the premises.

    Here are the facts as I understand them: Congress already assumed the political responsibility of justifying to the public the taxes that would be necessary when it adopted the ACA. The ACA is a tax, as the Supreme Court has already held. It imposed on Hobby Lobby the duty to do nothing other than pay money to government – just as any other tax. Government then use these tax dollars to subsidize health insurance that meets certain criteria relevant to achieving the bona fide governmental purpose of making the health care system more efficient (by, for example, substituting the cost of contraceptives for the cost of unwanted pregnancies and childbirths). But the ACA also provided a tax exemption for firms that were willing to provide this insurance on their own. Hobby Lobby was unwilling to do so (allegedly for religious reasons), and thus did not qualify for the tax exemption. This is no different than saying that Hobby Lobby was discriminated against because if failed to donate money to the local imam (allegedly for religious reasons), and thus did not qualify for a charitable gift deduction.

    That said, the Court should have applied the lessons of Zobrest and asked, “To what extent does Hobby Lobby’s exercise of its religious freedom burden the public interest (including the public treasury)?” To impose on Zobrest or Hobby Lobby an incremental cost that exceeds the burden on the public would be, in effect, to needlessly burden the free exercise of religion (or, in the language of the RFRA, would not be the most narrowly tailored means of promoting the compelling state interest in making the health market more efficient).

    Thus, the remedy was not to remand the matter to Congress, but to remand it to a fact-finder to calculate the incremental cost that Hobby Lobby would impose on society by refraining from providing coverage for four types of birth control. Kennedy declines to adopt this remedy because he concludes that, similar to the conclusion in Zobrest, there is NO incremental cost. That is, he notes that the Administration had found circumstances under which insurers were willing to provide cost-free stand-alone policies providing birth control to people who were already covered by the insurer’s policies.

    So perhaps the holding of Zobrest is alive and well!

  4. N.D. says

    I suppose if our Founding Father’s believed every man to be a religion onto himself, they would not have secured and protected our inherent Right to Religious Liberty, which can only be endowed to us from The True God. Without the King of kings, every man would be a king, and that could only lead to anarchy. No doubt, if we are “no longer a Christian Nation”, we no longer recognize The King of kings, and the purpose of our Life, our Liberty, and our Pursuit of Happiness becomes merely a matter of opinion. At this point in Time, we have not been completely stripped of our founding Christian principles, and in fact, we still profess to be One Nation under God.

    Our right to Religious Liberty is a right not to be forced to condone any act that is a violation of a tenet of our Faith. It is not necessary, nor is it proper, for an administration agency to coerce any employer into providing their employees, through a third party, with contraception coverage, and thus coercing them to condone the contraception mentality, which is not life-affirming or life-sustaining, and in some cases, destroys the life of a son or daughter, promotes promiscuity and the sexual objectification of the human person, and has contributed to the denial of the personhood of the son or daughter residing in their mother’s womb, while reordering man according to sexual desire/orientation, which denies the inherent personal and relational Dignity of the human person, who is, in essence, a son or daughter, brother or sister, husband or wife, father or mother.

  5. N.D. says

    To be virtuous, is to be chaste in our thoughts, in our words, and in our deeds. At the end of the Day, we can know through Faith and reason, that the reason we have free will is so we can freely choose to Love; no one can coerce another into Loving them, Love is a gift, given freely from the heart.

    Love is trinitarian. There is an order to Love, which is why a man does not Love his wife, in the same manner as he Loves his daughter, or his son, or his mother, or his father, or a friend. Authentic Love is ordered to the inherent personal and relational Dignity of the human person. Every human person has the inherent Right to experience authentic Love. Our inherent Right to Religious Liberty, which Has been endowed to us from The True God, exists so that we come to know, Love, and serve God, The ordered Communion of Perfect Love that Is The Holy of Holies, The Blessed Trinity.

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