“We’ve Already Excluded the Atheists, Right?”

November 7, 2013

This was the question Chief Justice Roberts posed yesterday to the attorney representing the plaintiffs in Town of Greece v. Galloway — plaintiffs meaning the people challenging the town’s prayer practice. Roberts was asking whether the concerns of atheists had to be considered in determining whether the prayer practice is constitutional. And, incredibly, the plaintiffs’ attorney responded, “We’ve excluded the atheists.” (Transcript, p. 46.) In other words, to all atheists: Your concerns don’t matter. You’re not part of the community. You’re a special case and your constitutional rights are limited. Or, if you prefer blunter language, eat shit.

Town of Greece v. Galloway is the case involving a challenge to a New York town’s practice of having prayers open its board meetings. A couple of residents, a Jew and an atheist, filed a lawsuit challenging the practice. Hanging over this legal challenge was the foreboding presence of the Supreme Court’s 1983 decision in Marsh v. Chambers, which held that invocational prayers in Congress and state legislatures are permissible.

The U.S. Court of Appeals for the Second Circuit upheld the residents’ challenge, however, distinguishing Marsh by noting the Town of Greece had, until it was challenged, utilized exclusively Christian clergy and that many of their prayers were sectarian. Moreover, the town had done nothing to assure residents that the views expressed in the prayers did not represent the official position of the town. The court of appeals thought such an explicit disclaimer is important in the context of a local board meeting, as local residents who have official business before such bodies must be present at the meetings, which is not the case with legislative sessions in Congress or state legislatures, where members of the public are merely spectators.

CFI, joined by other secular groups, filed an amicus brief before the Supreme Court, arguing that the reasoning behind the Marsh decision is fundamentally flawed. The Marsh court assumed invocations would not be divisive. That has proven not to be the case, especially as the country has become more religiously diverse, including a growing segment of nonreligious individuals. There have been a number of protests involving various local bodies when members of minority religions have offered invocations—or when atheists were allowed the opportunity to open business with solemn secular remarks.

CFI also argued, in agreement with the Second Circuit, that there is a significant difference between local governmental bodies and state legislatures. If you want your zoning petition approved, would you refuse to participate in the town council’s prayer? Clearly, at the local level, there is an element of coercion that is not present in Congress or state legislatures. Therefore, at a minimum, Marsh should be limited to its facts.

We did not expect the plaintiffs’ attorney, Douglas Laycock, to spend his time championing the rights of the nonreligious. After all, he is there to win a case. But it seems to me he did not have to go out of his way to throw atheists under the bus. The question about excluding atheists from consideration arose in the context of a discussion about whether any type of prayer practice would please people of all groups, whatever their religion or lack of religion. Laycock, knowing that he could probably not get a Court majority to eliminate the prayer practice entirely, decided to take the angle that you only have to please the majority of people. Only the majority of people have to be treated equally.

Oh, great, so the Establishment Clause was intended not to protect minority rights, but rather the sentiments of the majority. You know, all these years, I had that backward, Doug. Thanks for straightening me out.

Why couldn’t Laycock have said something like this: “Recognizing that absent reconsideration of Marsh, this Court is going to allow prayer, it’s clear that if we want everyone to feel part of the political community, at a minimum, three things must happen: one, the local government must take explicit steps to ensure that citizens know the views expressed in the prayer are not a reflection of the government’s position; two, citizens must know there’s no requirement to participate in the prayer; and three, opportunities to open the business meeting must be offered to all, including to nonbelievers who are willing to deliver a solemn secular opening.”

Would it have been that difficult to say this? If you read the transcript of the argument, you’ll note that Justice Breyer tried to push Laycock in that direction. Apparently, Laycock thought it easier or more prudent just to dismiss atheists from consideration.

We will not know the outcome of the case until June. But we have already learned something from yesterday’s argument. The argument serves to remind us that despite all the progress that has been made for the nonreligious, despite our increase in numbers, we still have a long way to go before  we’re considered worthy of equal consideration, even by our sometime allies.

But I do have news for the justices who think we can be ignored, dismissed, pushed aside—and for our “friends” who regard us as expendable. We’re not going away. We will keep fighting for our rights, as well as the rights of everyone to be free from government interference with religious beliefs. We think everyone is deserving of equal treatment under the Constitution, not just the majority.  And, although this fight may still take decades, in the end we will prevail.