Why the Supreme Court’s Conservative and Liberal Judges Are All Greek to Me

The Greece v. Galloway decision is another reminder that some things are both constitutional and wrong.

In the recent U.S. Supreme Court case Greece v. Galloway, the five conservative justices ruled that sectarian content is permissible in public invocations and official prayer, while the four liberal dissenting justices felt that religious leaders should give nonsectarian prayers at government functions. I disagree with all nine justices. Their opinions reminded me of the quip from former Justice Potter Stewart that while he couldn’t define pornography, “I know it when I see it.”

I can neither define nor have I seen a nonsectarian prayer, but I know a sectarian prayer when I see it. Justice Anthony Kennedy, arguing for the majority in the Greece v. Galloway case, said that the government should not “act as supervisors and censors of religious speech,” yet went on to describe when they should. Kennedy added that clerics should not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”

Why should the government censor a preacher who feels called to warn us that we will all burn in hell unless we accept Jesus as our personal lord and savior? If Pope Francis were to give an invocation in a public forum, should we caution him against focusing on Satan and exorcisms, as he is doing more frequently than recent popes?

Personally, I’d rather hear an honest fire-and-brimstone prayer than a watered-down, nondenominational, to-whom-it-may-concern prayer. In fact, I feel more excluded when I hear prayers to a nondenominational Almighty meant to be inclusive of all monotheistic faiths because this dismisses those of us who have no faith at all in deities. Religion in any form is inherently divisive. The five-to-four Supreme Court split, with five Catholics on one side and three Jews and a Catholic on the other, will not unify our country.

I’m not offended by prayer, but I am offended by government-sponsored prayers in a secular country constitutionally bound to not favor one religion over another or religion over non-religion. I’ve accepted invitations to visit a number of churches. I’ve welcomed Jehovah’s Witnesses and Mormons at my door and taken their literature even when they refused mine.

Some Christians have tried to place Ten Commandments plaques on public property, though you’ll almost never see them on church property. My former County Council representative and current U.S. senator, Tim Scott, once insisted on posting a Ten Commandments plaque on the wall in the Charleston, South Carolina County Council chambers to remind residents of moral absolutes. After the court declared the display unconstitutional, Scott was asked if he could name the Ten Commandments. He couldn’t.

Even when religious acts are just politics, prayer at government functions promotes the idea that decisions and actions are guided by a higher power rather than by thoughtful deliberations. Further, such government endorsements create theological insiders (almost always Christian) and outsiders. One such outsider, the Humanist Society, is now actively promoting its secular invocations program for local communities. Government bodies will have to decide which faith groups and secular groups they deem acceptable to speak at public meetings. Does anybody see conflicts ahead?

My Charleston City Council usually starts its meetings with an invocation from a Christian. In 2003, one council member invited me to give the invocation. But as the mayor introduced me, half the council members walked out because I’m an atheist, and they didn’t return until it was time to recite the Pledge of Allegiance — looking at me and bellowing the words “under God.”Nobody who heard my invocation was offended by it.

More recently, a Hindu priest in 2012 was invited to lead the opening prayer in the U.S. Senate. He was disrupted several times by angry Christians who shouted competing Christian prayers. Some in this country must think freedom of religion means freedom to practice the Christian religion. Others think we have freedom of religion, but not freedom from religion. No wonder our founders wisely separated religion and government.

I wish government bodies would simply begin with government business. But if prayer is part of government business, let’s treat it as such. Since my City Council allows time at meetings for questions and comments, would it not be appropriate to question the content of the opening prayer? If so, given religious sensitivities, there might not be time for any other business — another reason to keep religion out of government.

I’ve saved the worst (or maybe the best) for last. Though Justice Clarence Thomas voted with the majority in the Greece case, he didn’t think his conservative allies were extreme enough. Thomas said that the First Amendment “probably” bars Congress from setting up a national religion, but that doesn’t apply to the states.

For me, this was a déjà vu experience. In 1990, I went from being a mild mannered math professor to becoming an accidental activist atheist when I discovered that the South Carolina Constitution prohibited atheists from holding public office. After an eight-year legal battle, the South Carolina Supreme Court ruled unanimously in my favor that Article 6 of the U.S. Constitution prohibited religious tests for public office, dismissing a states’ rights argument. Details of this case are included in my book.

Thanks to politicians like Clarence Thomas, I moved out of my academic ivory tower to become more engaged in social issues. Should four more people join the U.S. Supreme Court who share the philosophy of Thomas, perhaps states like South Carolina will be permitted to establish Christianity as their official religion and bar non-Christians from holding public office.

The Greece case is an irritating example of something that can be both constitutional and wrong. Though an atheist, I do like some of what Jesus purportedly said. I wish more of our politicians would take seriously Matthew 6:5: “When you pray, be not like the hypocrites who love to be seen by others.”


Image via Shutterstock.

Herb Silverman
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  • Helen Kahn

    Herb Silverman’s articles are so cogent, hopeful and reasonable. I wish he would have a column in a more widely published media so everyone can enjoy his wisdom… especially the religious.

  • RichardSRussell

    Contrary to the opinion of creationists, the Grand Canyon was not formed in a day. It was steady erosion by the Colorado River over millennia. Erosion doesn’t work all at once. The river will gradually whittle away at a bank until it’s undercut, then all at once a chunk will fall off and be swept away. Let this happen millions upon millions of times, and you’ve got a gaping hole where once there was solid land.

    So it is with separation of church and state in America. “In God we trust” on our money was cited as a precedent for inserting “under God” in the pledge of allegiance. That was cited as a precedent for getting religious Xmas decorations on courthouse lawns. That was cited as precedent for posting the 10 Commandments. The whole lot was cited as part of the “tradition” that, in the minds of the 5 conservative Catholics on the Supreme Court, evidently trumps the clear words of the 1st Amendment.

    And now Greece v. Galloway. Look for it to be quoted endlessly as a shining example of how religion in general (and Christianity in particular) is legitimate public business, justifying taking up everybody’s time and eventually their money, as if it were serving some kind of public good. Because, as Tevye pronounced in Fiddler on the Roof, “TRADITION! Tradition!” Never mind that the most prominent tradition of his Russian Jewish culture was spelled p-o-g-r-o-m.

  • allinthistogether

    I know I am oversimplifying the issue, but I am stuck on this point that the Supreme Court seemed to fail to acknowledge at all: the town government of Greece, NY selects the person (from a group of volunteers) that will perform the invocation prayer at a meeting called by the government for the purposes of government business. That person is allowed to stand up and speak a prayer out loud. As far as I know no one else is given time to stand up and pray out loud (for practical reasons regarding limited time). However it seems clear that when one person is sanctioned by the government to say a prayer out loud and no one else is allowed to do so, the religious rights of all of the other attendees are violated. What is the constitutional argument for allowing one person to pray outloud, while obstructing others from doing so? I’m guessing that the counter argument would be that this has been traditional practice, and it is not reasonable to use up more time. The honest and constitional solution would be to allow everyone to pray out loud, or allow everyone to pray silently.
    There are many colonial traditions that the Supreme Court has decided over time are not constitutional. Prayer by one government sanctioned person at public meetings is another such tradition that should be outgrown.

  • James J Lundy Jr

    Once again, a beautifully put, calm, and reasonable essay. It feels like there has been an accelerating change in the concept of freedom of religion in this country from its origins of freedom to believe anything one chooses, to freedom to assert those beliefs on others. Fox News has been able to whip people up in a frenzy that a “war on religion” is raging if a group’s efforts to force something (monuments, prayers, restrictive laws) are resisted and challenged in court. It deeply concerns me.

  • JACKjozevz

    What a Beautiful ‘Cuop’ (mind).

    Note: i [WE] always remember YE and YO [U.S. CONST.] Article 6 Ruling (Forcing Religious nut cases, in red-Neck Countries (i.e., South Cariolina USA) from Discriminating against THOSE WHO DO NOT [believe] IN WHAT THEY are Bollixed about. Happy Everyday (like a Birthday).

    PS: i [WE] Are ALL Born in MIRACLE (never via Their’s or Someonesles Born -in-SIN or Curs’th Stories).

    Peace, Paz, Mir, Shalom, Salaam, Shanti, Zhingyu…

  • TommyNIK

    Like it or not, in the US there is a religious
    thread that goes all the way back to the founding of the Plymouth colony.
    Around 80% of the population affiliates with a religion, mostly some form of
    Protestantism with a heavy dose of Roman Catholic.

    It’s true we don’t have a state religion, but our laws AND the intent of the
    First Amendment are under well-financed and systematic attack by the religious
    right who have highly placed friends in the state and federal governments. They
    have a different view of the intent of the Establishment Clause. We are
    culturally a religious country….the MOST religious country in the advanced
    non-Islamic world. Even IRELAND is in the early stages of throwing off the
    influence of the Catholic Church.

    And NOW we have a religion-friendly SCOTUS which should be obvious since
    the Greece v Galloway decision. Let’s see what happens when the Hobby Lobby decision from
    the court comes due next month.

    The intent of all this is to turn the US into a “soft” theocracy by
    changing our laws one by one based on religious belief and dogma.

    Only through activism of atheists, free thinkers, and people of reason, logic,
    rationality and critical thinking will this travesty be averted. I would even
    add moderate believers into this group if they truly have the will. I admit I
    don’t have much more respect for them than I do they’re more strident brethren.

    Here are some organizations that are in the fight. I’m a member of all of them
    and I contribute…and I VOTE.

    American Atheists, Inc. (Official)
    Americans United for Separation of Church and
    Global Secular Humanist Movement
    Secular Coalition for America
    National Secular Society
    Freedom From Religion Foundation

    This is NO joke.

    • John Childs

      80% of the country affiliates with a religion. But, the scary part is when many of those speak, and from their mouths pour the most hateful and negative views about their fellow citizens, the nature of civil rights, and their dictatorial tendencies towards political theory. Mostly they spout a philosophy that would turn us into a Theocracy bowing down to the rule of “men of the cloth” rather than the rule of law. Amazing.

    • Herb Silverman

      Thank you for contributing to all these fine organizations. The pen may be mightier than the sword, but these days money is mightier than both.

  • https://www.facebook.com/BlowtorchOfReason BlowtorchOfReason

    AWESOME! I cannot agree more

  • John Childs

    It seems many Americans have forgotten what our forefathers fought and died for. That is the right of an American to stand on two feet, bow to no one, and think free. This tendency of my fellow Americans to surrender their ability to think freely and rationally is very disturbing and disappointing. It has caused me more than any other event to draw farther and farther away from any sort of religious observance or worship. As a matter of fact after feeling disenfranchised by fear of the path the fundamentalist conservative right wing religious community has set our nation on I feel more than ever inclined to solidify my turn from religion and toward free and rational thought thereby committing myself to better understanding my skeptic past and a return to agnostic periods of thinking.

  • Amy

    I am reminded of the quote “Be careful what you wish for, you just might get it.” The Christians insist on invocations. Okay, fine. But I will enjoy the Christian indignation when (not if, but when) Lucien Greaves and the Satanic Temple have a go at this. It’ll be sorta like the indignation Louisiana Rep. Valarie Hodges (R-Watson) felt when she realized that Muslim schools could receive state funds through the new voucher program to support religious schools. *Gasp!* Christianity isn’t the only religion, and what’s good for one group is good for all groups.

  • Bennie The Bouncer

    Although I’m glad you noticed the SCOTUS justices climbing over one another in their eagerness to trample the line between church and state, just keep in mind that SCOTUS has also approved the taking of land for commercial use; inverted the meaning of the commerce clause; blatantly let ex post facto laws slide; completely buggered the 4th amendment and others; why even decisions that come out on the right side, constitutionally speaking, often give sane people chills when the actual opinions are read. No matter the constitution’s faults (and I agree there are serious faults), those people are supposed to defend the intent of the document until or unless amendment changes that intent. That’s the correct path, but it’s also an abandoned path, and that’s why SCOTUS is now the people’s worst nightmare. There are days when I wonder if freedom of speech is left alone simply to let the citizens vent, rather than have them build up unreleasable frustrations en masse.

  • Loretta Haskell

    Dr. Silverman has called it like it is and brings our attention to a questionable ruling by our Supreme Court. Why can’t we just have a “moment of silence” every once and a while at public gatherings? I was at an international professional conference in Paris five years ago in which we had a “moment of silence” to remember many of our colleagues who had passed on since the previous meeting. I will never forget the power of having members from so many different countries standing in silence and as a collective group with a common purpose. If that is the purpose of an invocation, we would all be better served by a “moment of silence” instead of “public sectarian prayer.”