By George Francis Kane

Since Sandra Day O’Connor’s retirement in 2006, supporters of Jefferson’s wall of separation between church and state have feared that the Supreme Court would dismantle its Establishment Clause protections. That came to pass on May 5 when the Supreme Court rendered its decision in the Town of Greece v. Greenwald case.

Two women, a Jew and an atheist, brought suit against the Town Council of Greece, which adjoins Rochester, New York, to end its practice of opening their meetings with Christian prayer. When the suit was first filed, the council responded by inviting a couple of ministers of other faiths to lead the invocation, but thereafter returned to its original list of churches within the town borders for invitations. While there is a diversity of faiths among the residents of Greece, the only houses of worship in the town are Protestant. Most of the invocations given at the council meetings were offered in Jesus’ name, with no recognition of non-Christians in attendance.

Since the 1984 Lynch v. Donnelly case over the display of a crèche in a public square, the Court has held that certain nominally religious practices of government such as the national motto “In God We Trust” and the mention of God in the Pledge of Allegiance constitute a merely ritual ceremonial deism. Justice Brennan wrote that as such they are “protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.”

One prong of the Lemon Test for an Establishment Clause violation holds that the government’s action must have a legitimate secular purpose. O’Connor’s decision in Lynch v. Donnelly has until now guided court decisions on how that test should be employed. O'Connor wrote:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

For thirty years this Endorsement Test set the boundary of permissible government prayer. It was understood that they could not be expressly sectarian, such as by invoking Jesus, but had to be ecumenical and inclusive.

The decision in Greece v. Galloway trashed the Endorsement Test. “To hold that invocations must be non-sectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech,” Justice Anthony Kennedy wrote.

Lawmakers and judges would otherwise have to police prayer, he wrote, involving “government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.”

Kennedy supplanted the Endorsement Test with a new Coercion Test that will rarely be triggered. It holds that legislative prayers may not be used to praise the virtues of one faith or to denigrate others, but that courts have no role in judging whether individual prayers satisfy that test. Rather, they can only examine the “pattern of prayer” to see whether it crossed a constitutional threshold to create a form of “coercion.” Justice Clarence Thomas, joined by Justice Antonin Scalia, argued that a coercion test would be violated only if a government body had actually induced people to be followers of one faith, such as by requiring them to go to religious services or to pay taxes to support religious institutions.

The decision in Greece eviscerates the Establishment Clause as the guarantor to American citizens of the rights of conscience against the government. This shifts the struggle for separation of church and state from the courts to the polling booth. That struggle will be much more difficult.