The decision went against the secularists, as described in this legal commentary.
From Justice Kagen's dissent:
That principle (of non sectarianism) meant as much to the founders as it does today. The demand for neutrality among religions is not a product of 21st century "political correctness," but of the 18th century view-rendered no less wise by time-that, in George Washington's words, "[r]eligious controversies are always productive of more acrimony and irreconciliable hatreds than those which spring from any other cause." Letter to Edward Newenham (June 22, 1792), in 10 Papers of George Washington: Presidential Series 493 (R. Haggard & M. Mastromarino eds. 2002) (hereinafter PGW).
In an age when almost no one in this country was not a Christian of one kind or another, Washington consistently declined to use language or imagery associated only with that religion. See Brief for Paul Finkelman et al. as Amici Curiae 15-19 (noting, for example, that in revising his first inaugural address, Washington deleted the phrase "the blessed Religion revealed in the word of God" because it was understood to denote only Christianity).
Thomas Jefferson, who followed the same practice throughout his life, explained that he omitted any reference to Jesus Christ in Virginia's Bill for Establishing Religious Freedom (a precursor to the Establishment Clause) in order "to comprehend, within the mantle of [the law's] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." 1 Writings of Thomas Jefferson 62 (P. Ford ed. 1892). And James Madison, who again used only nonsectarian language in his writings and addresses, warned that religious proclamations might, "if not strictly guarded," express only "the creed of the majority and a single sect." Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 561 (1946).
8/14/2013
Prayer in City Councils
I first wrote this when the Egyptian Military opened heavy fire against the Muslim Brotherhood with hundreds dead. Within a few weeks while this continued, there has been escalation of the slaughter in the ongoing Syrian war, now with poison gas. There is a common thread in these eruptions of mass violence, the root being religious dissension.
The functional motto of the Christian Brotherhood could be the same as of this country, "In God we Trust" --and for the Muslim group this trust extends to expanding of his revealed plan to become the law of the land. Sadly, a similar aspiration is not uncommon in this county for our majority religion, along with other countries with a majority religion. Our great American experiment of government reflects these dynamics in the case that will soon be decided by the U.S. Supreme Court, City of Greece vs. Galloway being the vehicle. While rabid partisanship is usually seen as harmful, this case does not reflect this, as the liberal party that usually includes our secular minority, has written an Amicus brief supporting expanded prayers in city councils as described here.
The first few pages of this brief from the plaintiffs shows what is at stake. Attendance at the opening prayer, which turned this city hall into a virtual church, was required for all, including people having business before the council. As you read further you see that neither the original complaint, or the existing appeals decision, would abolish prayer in city council settings, but only mandates that such prayer be limited to a general support for religious guidance with the clear statement that participation is voluntary.
I contacted the plainfiff's attorney with a suggestion for an Amicus Brief based on the following essay that she encouraged me to pursue. I did make a presentation to my local City Council of Encinitas to sign on to such an Amicus Brief, which they took no action on. The following is the essay I submitted to several publications.
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God Bless America----------------------
At a local city senior center a few of us had been singing those great old tunes accompanied by the honky-tonk, piano, and then it was time for everyone at the dining hall to join in a single song before serving lunch. I not only knew the worlds but it was one of the few songs that I could sing on key. This particular song, God Bless America, brought me back to my earliest memories at the end of World War II, when as a child I felt, without understanding, what the words of this prayer set to music meant- an affirmation that this country was worth fighting for, and that in the midst of worldwide carnage there was still hope, personified by God- who I was just learning about in synagogue.
My voice has changed since then and so have my values and convictions. I no longer believe that this God exists, yet when I was singing this song no one who saw me could have guessed this. For I was reliving the emotion, the sense of belonging, that joining in this song hearkened to. Only hours before this lunch event, at our post tennis bull session there was a discussion that included another person, John D. who was singing along with me. This man, a bit older than I, avidly not only believes in God, but that Jesus Christ is the way to bring people to him, with spreading this word his main goal on this earth.
Our earlier discussion was about a specific issue, the Supreme Court case, City of Greece vs. Galloway, which can be understood using the song John and I sang together. From one type of analysis, this song was a prayer given at a government facility, which could be seen as breaching that proverbial wall between church and state. In the evolution of our country, from its earliest times the challenge has always been to form a unified nation out of differences of all kinds. That first motto that conveyed this aspiration, “from many comes one,” should never have been replaced. In actuality our country never really had such a wall. It was more a semi permeable barrier that has changed its characteristics over the decades and still requires constant upkeep to be effective. This Supreme Court Case an example of this, and so to understand it, the partisan simplification that the outcome will either unleash the atheist mafia or the other bugaboo, that it could advance a Christian theocracy has to be defused. This court decision is a maintenance operation to tweak this wall to continue to work in our current times. However, It should be taken seriously, especially in this region of north country, which is made up of multiple cities and their legislative bodies, city councils, which is the focus of this lawsuit.
The proverbial wall between church and state has been shaped by hundreds of court decisions that interpret the establishment of religion clause of the first amendment of the constitution. This single sentence has engendered thousands of court cases—but almost no violence, no atrocities such as the world is viewing in horror at this moment in Egypt-- which has its root in exactly the conflict between church and state that we have relegated to our courts. The way our wall has evolved over these myriad legal challenges is that it does not actually separate the two domains, but goes through both of them. So churches can get involved in politics-to a degree, and government can support religion- but only in a limited way. The musical prayer that John and I sang together is protected against any overly enthusiastic atheist who sees a Christian version of the Muslim Brotherhood under every “God bless you.” But the wall must continue to be maintained from the other side; so instead of it being at a social lunch, had there been a prayer, whether in the form of a song, a pledge or a benediction, at a venue for official business, no one could pressure an atheist to bow his head and say amen. This is what happened in the city of Greece, New York. And even John, my evangelical friend, said that was wrong.
This case actually rests on some fine points of what is referred to as "establishment clause jurisprudence." It comes down to this, what exactly is the affirmative obligation for a city in an official setting to prevent the proceedings from becoming a virtual house of worship, with those who do not believe in the given faith being ostracized if they choose to point out that they are there for city business and not for spiritual enlightenment of any kind. Cases such as this should not be seen as meaningless, or proof that one side is being too aggressive, but rather as the functioning of that system of government that I could so happily raise my voice in song to praise.
Yet, this system is not self sustaining. Even though this particular case will be decided by nine unelected Justices, the root of all power eventually comes from the people- but only if we care enough to get involved. We are actually fortunate that this case transcends partisan politics, as both a majority of state Republican officials and the Obama administration have the same position on this case, that the atheists who were offended can be ignored and should just "tough it out." The President's Amicus brief does say that some changes should be made in the city's procedures, but that they are not bad enough to chastise them for not having them in place for many years. My position is different, that the wall should be moved a bit in the other direction away from religious services. A city council meeting is sacred in its own way, as it is a temple of democratic ideals that only thrives when it is independent of any religion, especially one that seeks universality of adherence.
I want the opportunity to choose to join in singing God Bless America in the government sponsored senior dining room, but also not have to pray in any form when I participate in a city council meeting. Personally, I would go further, that the Pledge of allegiance, that only was transformed into a type of prayer when I was older, also be outside that permeable wall; which means it can be recited voluntarily at official settings, with care taken that those who choose not to participate are not subjected to a hostile environment. But the case before the court does not address that issue, only the rules for actual head bowed, preacher led, real prayers at council meetings.
Those who share the views expressed here, especially those who are now serving or have served on government councils, do have an opportunity to sign on to this message in the form of an Amicus brief, and with luck actually have it read by those Justices who will decide the case. Check out my website (AlRodbell.com) for the actual details. If you agree with my general position contact me, and whatever the outcome, the effort alone can advance the now quaint idea that this still is a government of, for and by the people.
I would like to switch focus by using as an example a different area of law, that of domestic litigation, or divorce procedure. It became generally understood decades ago that the very process of litigation became harmful to the larger goal of allowing the newly separated parents to continue to go on with their own lives and to nurture any children. It was partly because the very process exacerbated mutual hostility, and there was the actual cost of litigation which increased the imperative to win, often at any cost. Out of this came the practice of divorce mediation, where concern for the separated post-divorce family superseded the traditional "zealous advocacy" of contending parties.
I
am convinced that the current procedure of litigation and adjudication
in "establishment" law has reached a similar place. Beyond lack of
functionality, which should provide principles to create a widely
understood legal landscape for common usage, it unnecessarily
exacerbates the cultural divide. When numerous decisions rest on self
described "sum totality of all elements of religious symbolism" we have
an acknowledgement of subjectivity which is incompatible with the
concept of the rule of law. Justice Clarence Thomas in his
dissent to a Utah Cross case refusal of cert elaborated on this
recently, with myriad examples that are valid irrespective of his own
unique perspective.
It
is for this reason that I am reluctant to give up my efforts. I have
sent my "God Bless America" essay to several people, one a most well known atheist, copied here, who took his attempt to have "under God" removed
to the Supreme Court, the other two with odd backgrounds. Tom C. is a man of contradictions in his rare achievements. He has created an
international company for research and manufacture of
antibody based therapeutics. However, he describes this as secondary to "job one" which is more
important than his scientific-commercial efforts. It is bringing people to
his creationist Christianity, having founded a Museum in San Diego
county and a massive church inside his manufacturing facility in Mexico to pursue this end. When he read my essay, he gave me something
to work with, not to convince atheists like myself, but for other
Christians, none being more fundamentalist than he. He wrote back, after disagreeing with my broad secular values, that the bible makes it
clear that, unlike the City Council of the instant case, "no one should
be forced to believe, and should only come to God by their own free
will." When I asked him for chapter and verse in the bible, he sent me
several references that implied this.
The
second is a women who wrote a book and screen play for the
artistically acclaimed "Higher Ground," which sensitively described
growing up in an evangelical Christian surrounding. She only responded
briefly, but appreciated my essay, probably because it was not
contentious, rather seeking a means of accommodation with our majority
Christian heritage. The challenge for mutual understanding had special
meaning to her, as this was her own life from her earliest memories.
This
case could be decided 5-4, for reversal, with ramifications beyond the
relatively small issue of degree of sectarianism allowed at municipal
councils. With all of the Amicus Briefs mentioned, certainly by those
who will effectively marshal a pro secular narrative from existing
precedent, I fear that the administrations brief shall prevail. I see
this as a loss of the opportunity to, paradoxically, gain support of
Justice Thomas for a re-evaluation of establishment precedent. By
acknowledging the reality that the Supreme Court does make law, it would
be best if they made new framework in this area that could be a model for the
clash of civilizations that has already started in Syria and Egypt.
Unlike the battle of the last century between communism and capitalism,
we are embarking on a new era, that of conflict between
revealed transcendent higher authority and that of liberal democracy.
This case, City of Greece v. Galloway, could be the opportunity to
articulate the principles of our own national foundation, expanded for our times that provides a clearer structure for accommodation that will be a model to other countries,
where such a solution is rapidly becoming essential to their very survival.
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Addendum:
This is the link to the transcript of the oral argument before the Supreme Court in this case.
This essay describes how both Democratic in 2008 and Republican in 2012 Presidential Candidates distorted the Pledge as a wedge issue in their campaign.
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