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Government Ethics Arguments Against Prayer at Local Government Meetings
Tuesday, November 5th, 2013
Robert Wechsler
Tomorrow morning, the U.S. Supreme Court will hear arguments in the
case of Town of Greece v. Galloway, regarding prayer at meetings of
local legislative bodies. In addition to the important
constitutional questions regarding separation of church and state,
there are government ethics questions involved. This post will consider those ethics questions.
Justice O'Connor emphasized the government ethics issues in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668 (1984). She wrote:
Personal Benefit and Preferential Treatment
No part of a local government, and especially high-level officials, should show preferential treatment to citizens based on their religious affiliation. The town of Greece (pop. 100,000) invited only Christians to pray before town board meetings. Presumably, town board members were themselves Christians and, therefore, were favoring like-minded people at least partly for their personal benefit. This is one of the many situations where an ethics code's exclusive focus on financial benefits allows such conduct to be considered acceptable.
It should not be considered acceptable. It is a misuse of the town board members' positions to benefit themselves, to include like-minded individuals, and to exclude from government those from other religions, as well as atheists.
In addition, when such preferential treatment has occurred and a religious institution has business to do with government, this preferential treatment makes it appear that it will be treated according to the town board members' own religious beliefs. For example, if citizens' attempt to build a mosque in town is rejected, will this not appear to be because their beliefs are rejected rather than for reasons germane to land use matters?
After the suit was filed, the town board started inviting adherents of other religions to say prayers before meetings (according to a New York Times editorial yesterday, the same thing happened in a case decided by the Supreme Court thirty years ago, and it ended after four months). But even this is questionable, since it still prefers believers over nonbelievers. It is true that even atheists could be asked to say prayers, but (1) atheists do not believe in prayer and (2) it is very difficult for most atheists to go public with their lack of belief. In fact, it is possible that one or more Greece town board members are only nominally Christian, but were afraid to speak out against Christian prayer at their meetings out of concern regarding the effect this would have on their re-election and on their standing in their community.
Citizen Participation
Even more important is the second of the government ethics issues: citizen participation. This issue involves a principal goal of government ethics, rather than an issue that can be directly dealt with in an ethics code.
As Justice O'Connor pointed out, "Endorsement [of a religion] 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. Disapproval sends the opposite message."
As an anonymous letter to one of the plaintiffs in this case said, “If you feel ‘unwanted’ at the Town of Greece meetings, it’s probably because you are.”
The plaintiffs have made the argument that the situation in Greece differs from the case thirty years ago, which involved the Nebraska legislature. In a local meeting, ordinary citizens take part in town business. They rarely do this before a state legislature (although they do take part in public hearings before legislative committees). This is a valuable distinction to make, and I hope the Supreme Court accepts it.
Local government meetings should be for everyone, and local officials should recognize that their obligation to support citizen participation is greater than any obligation they might feel to their personal religion, or even to religious belief itself.
People often think that prayer does not make anyone feel excluded. But these people most likely have not participated in a situation where there is disapproval of religion, which Justice O'Connor recognized as the same problem in the quote above.
A few years ago, the First Selectman of my town (effectively the mayor and, as far as I can tell, a Christian) was criticizing a citizen at a Board of Selectmen meeting. One of the things he said, describing a meeting he was not present at, was that the citizen "brandished his cross" at the manager of a supermarket in town. It was a completely unnecessary, inflammatory detail, and was met with laughter from some in the audience. This citizen always wears a large cross, and this was mocked by some who do not agree with him politically.
A Jew myself, I was appalled at this. And yet I did not speak out in his defense. There was so much hostility in the audience against the citizen that I felt cowed. I've been ashamed of this ever since.
Endorsement of a particular religion can have a negative effect, as well. Listening to talk of Jesus, Mohammed, or Moses, being surrounded by people praying and saying Amen, must make many nonbelievers feel uncomfortable. I am sure that many non-Christians feel cowed by public meetings that begin with Christian prayers, and either do not attend or attend and do not participate. Disapproval of anyone's religious beliefs or practices is worse, but it is important to recognize, as Justice O'Connor did, that this is only the other side of the same coin. Officials should not do, or allow, anything at a meeting that might undermine the participation of any group of citizens, for any reason, whether religious, racial, or gender-oriented.
Even if it is determined that the Constitution allows prayer at local government meetings, government ethics considerations should disallow such prayer.
Robert Wechsler
Director of Research-Retired, City Ethics
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Justice O'Connor emphasized the government ethics issues in her concurring opinion in Lynch v. Donnelly, 465 U.S. 668 (1984). She 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 in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. ... The second and more direct infringement is government 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. Disapproval sends the opposite message.In other words, involvement with religion or religious institutions raises two important government ethics issues: preferential treatment and the undermining of citizen participation in government. Greece v. Galloway involves both these issues.
Personal Benefit and Preferential Treatment
No part of a local government, and especially high-level officials, should show preferential treatment to citizens based on their religious affiliation. The town of Greece (pop. 100,000) invited only Christians to pray before town board meetings. Presumably, town board members were themselves Christians and, therefore, were favoring like-minded people at least partly for their personal benefit. This is one of the many situations where an ethics code's exclusive focus on financial benefits allows such conduct to be considered acceptable.
It should not be considered acceptable. It is a misuse of the town board members' positions to benefit themselves, to include like-minded individuals, and to exclude from government those from other religions, as well as atheists.
In addition, when such preferential treatment has occurred and a religious institution has business to do with government, this preferential treatment makes it appear that it will be treated according to the town board members' own religious beliefs. For example, if citizens' attempt to build a mosque in town is rejected, will this not appear to be because their beliefs are rejected rather than for reasons germane to land use matters?
After the suit was filed, the town board started inviting adherents of other religions to say prayers before meetings (according to a New York Times editorial yesterday, the same thing happened in a case decided by the Supreme Court thirty years ago, and it ended after four months). But even this is questionable, since it still prefers believers over nonbelievers. It is true that even atheists could be asked to say prayers, but (1) atheists do not believe in prayer and (2) it is very difficult for most atheists to go public with their lack of belief. In fact, it is possible that one or more Greece town board members are only nominally Christian, but were afraid to speak out against Christian prayer at their meetings out of concern regarding the effect this would have on their re-election and on their standing in their community.
Citizen Participation
Even more important is the second of the government ethics issues: citizen participation. This issue involves a principal goal of government ethics, rather than an issue that can be directly dealt with in an ethics code.
As Justice O'Connor pointed out, "Endorsement [of a religion] 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. Disapproval sends the opposite message."
As an anonymous letter to one of the plaintiffs in this case said, “If you feel ‘unwanted’ at the Town of Greece meetings, it’s probably because you are.”
The plaintiffs have made the argument that the situation in Greece differs from the case thirty years ago, which involved the Nebraska legislature. In a local meeting, ordinary citizens take part in town business. They rarely do this before a state legislature (although they do take part in public hearings before legislative committees). This is a valuable distinction to make, and I hope the Supreme Court accepts it.
Local government meetings should be for everyone, and local officials should recognize that their obligation to support citizen participation is greater than any obligation they might feel to their personal religion, or even to religious belief itself.
People often think that prayer does not make anyone feel excluded. But these people most likely have not participated in a situation where there is disapproval of religion, which Justice O'Connor recognized as the same problem in the quote above.
A few years ago, the First Selectman of my town (effectively the mayor and, as far as I can tell, a Christian) was criticizing a citizen at a Board of Selectmen meeting. One of the things he said, describing a meeting he was not present at, was that the citizen "brandished his cross" at the manager of a supermarket in town. It was a completely unnecessary, inflammatory detail, and was met with laughter from some in the audience. This citizen always wears a large cross, and this was mocked by some who do not agree with him politically.
A Jew myself, I was appalled at this. And yet I did not speak out in his defense. There was so much hostility in the audience against the citizen that I felt cowed. I've been ashamed of this ever since.
Endorsement of a particular religion can have a negative effect, as well. Listening to talk of Jesus, Mohammed, or Moses, being surrounded by people praying and saying Amen, must make many nonbelievers feel uncomfortable. I am sure that many non-Christians feel cowed by public meetings that begin with Christian prayers, and either do not attend or attend and do not participate. Disapproval of anyone's religious beliefs or practices is worse, but it is important to recognize, as Justice O'Connor did, that this is only the other side of the same coin. Officials should not do, or allow, anything at a meeting that might undermine the participation of any group of citizens, for any reason, whether religious, racial, or gender-oriented.
Even if it is determined that the Constitution allows prayer at local government meetings, government ethics considerations should disallow such prayer.
Robert Wechsler
Director of Research-Retired, City Ethics
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