The Supreme Court is currently pondering the case of Town of Greece v. Galloway. In that case, two women – one Jewish, the other atheist – have brought a constitutional challenge to a New York town’s practice of opening town board meetings with a prayer. The prayer is delivered by rotating guest prayer-givers, and indeed anyone, including atheists, is welcome to give the invocations. But in practice, the prayers have been largely Christian in flavor. For that reason, a federal court of appeals held that the practice violates the First Amendment prohibition against an establishment of religion. The Supreme Court granted the town’s request to review the case, and the Court, having received written briefs and heard oral argument, is presumably at work preparing its decision.
One of the most notable of several curious wrinkles in the case is the centrality of “offense” to the challengers’ case. The challengers, Susan Galloway and Linda Stephens, argue that their having been subjected to “offense” gives them both the right to sue and a meritorious claim that the prayer practice should be struck down. To quote their complaint, each of the women “objects to, is offended by, and feels unwelcome at” town board meetings because of the frequent Christian prayers.
Now, there are plenty of people who feel offended at things plenty of politicians say and do, and the normal rule is that such offense is not even close to being enough to justify a lawsuit. To use the technical terms, mere offense is not sufficient injury to create legal “standing” to sue. (The American Center for Law & Justice argued as much in an amicus brief in the Greece case.)
But leave aside the question whether Galloway and Stephens have the right to sue. Assume they do. Is the government forbidden from doing anything that gives offense? And in particular, if “offense” is the constitutional injury, what is the limiting principle? Consider the argument as phrased by Justice Elena Kagan:
Here’s what our—our country promises, our constitution promises. It’s that, however we worship, we’re all equal and full citizens… And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a non-believer, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. (emphasis added; quoted in “Throwing atheists under the bus,” Economist Nov. 8, 2013)
As the Economist article quoting this passage notes, this is a powerful argument. Indeed, it is stirringly patriotic. The problem, though, is that this argument has no acceptable limits – it “proves way, way too much,” in the words of the Economist commentary. For example, while Galloway and Stephens argue for a requirement that invocations be “nonsectarian,” why should offense only count when it comes from sectarianism? Why doesn’t an atheist – like Stephens – get to object to any mention of a Divine Being at all? In which case all legislative prayer has to go, and maybe the national motto (“In God We Trust”), invocations in the Supreme Court (“God save the United States and this Honorable Court”), etc.
But that’s not all. The way one responds to opening invocations is not the only clue as to one’s religious beliefs. The Muslim woman who wears a head covering, the Amish woman with the characteristic dress and veil, the Sikh man with beard and turban – all these also are “forced to identify” their religious beliefs by the simple combination of dressing in accordance with their faith and then showing up in person at a town meeting. Does this mean that having live meetings, or failing to blindfold town board members, violates the Establishment Clause? Are such individuals “coerced” either to dress in plainclothes or to hire representatives to plead their cases for them, for fear of being treated differently because of their visible religious differences?
And why stop at religion? The individual whose accent or garb betrays a foreign origin or a particular culture appears, not “only as an American,” but as an American belonging to a specific subgroup that may well differ from that of “most of the people in the room,” as Justice Kagan put it. For that matter, what about what one’s attire reveals about one’s financial status? Might not the local with the older, less fashionable clothing worry that the other local with the more expensive outfit will get preferential treatment? Should people in all of these categories be entitled to insist that board meetings be conducted online instead of in person, to avoid revealing visible or audible cultural identifiers?
The fact of the matter is, in our “melting pot” nation, persons carry with them a host of distinguishing features. There are no “generic” Americans, but rather a highly diverse collection of wonderfully distinct individuals. While it may be a challenge for officials to put aside all prejudgment and preferences in administering the law, it is a noble and worthy challenge. Those who are “different” have the right to equal treatment as human beings, period. But securing that right by the heavy-handed suppression of all visible or audible diversity, in the name of avoiding “offense” to some persons, is not the answer. Rather, such equality of enforced blandness pursues a downhill road with no limits in sight.
Walter M. Weber is Senior Litigation Counsel for the ACLJ in the Washington, D.C. office. A highly regarded legal writer, Weber received his bachelor’s degree from Princeton University and his law degree from Yale Law School. Weber emphasizes First Amendment law and has written briefs in many landmark cases at the Supreme Court including NOW v. Scheidler, Lamb’s Chapel v. Center Moriches School District and Bray v. Alexandria Women’s Health Clinic. Weber has argued more than a dozen times in appeals before federal and state courts. Prior to joining the ACLJ, Weber served as a staff attorney with the Catholic League for Religious and Civil Rights.