How neutral is neutral enough when it comes to religion?
That question will be decided when the U.S. Supreme Court issues its decision in Greece v. Galloway, a case which challenges the practice of the Greece, N.Y., town council to have a volunteer "chaplain of the month" open its meeting each month.
The prayer was given by Christian-oriented ministers from 1999 through 2007 and again from January 2009 through June 2010. After a complaint from Susan Galloway and Linda Stevens of Greece, four of the next 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha'i congregation. Galloway and Stevens claim the board's actions violate the Establishment Clause of the First Amendment because relying so heavily on Christian ministers is a tacit endorsement of Christianity over other religions.
The Founding Fathers, with European leaders' insistence on endorsing Catholicism as a state religion, felt the need to include the Establishment Clause in the U.S. Constitution. The oft-cited Establishment clause that government shall make no law respecting an establishment of religion was designed to ensure that everyone has the ability to worship as they pleased. America was to be a place where Catholics could be free to worship along with Methodists, Baptists or practice religions the founders couldn't have begun to imagine. Prayer before legislative sessions was optional, though the founders did appoint a chaplain to pray before the first Congress. The founders expressed a frequent call, nondenominational, to the Creator or sometimes to Almighty God before their meetings, in their writing and in areas including our national currency. Were their actions an establishment or endorsement of religion?
Justice Robert J. Jackson wrote dozens of opinions dealing with religious freedom, though he typically wrote protecting the rights of the minority to worship as they saw fit in the face of opposition from the majority. Dissenting in the 1943 Supreme Court case Douglas v. City of Jeannette, Jackson wrote, interestingly, about the need to protect freedom from infringement both by majorities and the minority.
"The First Amendment grew out of an experience which taught that society can not trust the conscience of a majority to keep its religious zeal within the limits that a free society can tolerate," Jackson wrote. "I do not think it any more intended to leave the conscience of a minority to fix its limits. Civil government can not let any group ride rough-shod over others simply because their 'consciences' tell them to do so."'
Saying yes to all does not mean saying no to the majority and rejecting more than 200 years of a nation's history. It is an interesting thought when applied to a case that asks how ideologically opposed citizens can enjoy their constitutionally protected rights at the same time in the same place.
Leave it to Justice Jackson to continue providing clarity to a confusing issue.