Tear Down This Wall! (Of Separation Between Church and State)

On yesterday’s decision by the Supreme Court to open the door to state-endorsed religion:

I think the dissenters are right that Greece goes beyond what Marsh permitted. And I also admire Kagan’s articulation of why a robust interpretation of the Establishment Clause is so important. The First Amendment is a promise of equal citizenship, a “promise that every citizen, irrespective of her religion, owns an equal share in her government.” The sectarian invocations at Greece’s town meetings send a message that people of minority faiths are not full members of the community. “When the citizens of this country approach their government,” Kagan reasons, “they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”

The problem, however, is that these principles are violated no less by the prayers upheld in Marsh as those upheld in Greece. As Justice William Brennan’s dissent in Marsh made clear, the Court’s rationalization of legislative prayers amounted to an argument that the tradition had become self-justifying. Even if state-sanctioned prayers could be given by a broad array of religious leaders and have non-sectarian content, they would send a message that people who do not subscribe to a religious faith are not full members of the community. And it is enormously unlikely that legislative prayers would be either non-sectarian or fully inclusive in their selection of religious leaders. Marsh was wrong, and Greece simply compounds the error.

Remarkably, this opinion did not go far enough for two members of the majority. Justice Clarence Thomas filed a concurring opinion in which he repeated his view that the Establishment Clause does not apply to the states at all. The state of New York, in his view, is free to endorse religion in any way it chooses, up to and including choosing an Archbishop of Albany to serve as head of the Church of New York State. Justice Antonin Scalia did not join that part of Thomas’s concurrence, but he did sign on to a subsequent section that would water down the coercion doctrine down to next to nothing.

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