By Julia Stronks, PhD, JD
Last week I was driving on a local road through a number of small towns. In two of these towns, the courthouse or the city hall was festooned with Christmas lights in the shapes of both a nativity and a Santa Claus. It’s always jarring for me to see these two images together, especially on a government building. But I know that the intent of the decorators is a form of pluralism, and I appreciate the effort even if I do not like the result. When a community has people with a variety of conflicting viewpoints it has to make a decision. Will one viewpoint dominate the public square? Or will the community try to accommodate as many views as it possibly can, even though some of the views espoused by some may seem offensive to others?
Lack of clarity in the First Amendment
The First Amendment of the U.S. Constitution provides that government must not “establish” a religion. But it has never really been clear what this phrase means, and for two hundred years Supreme Court justices have debated just what the relationship between government and faith ought to be. For some, the phrase means that there must be a strict wall of separation between church and state. For these judges, prayer in schools, religious artifacts on government grounds, and government funding that benefits faith-based nonprofits are all problematic. There are times when our Judeo-Christian history leads these judges to say that some public recognition of religion is part of our “civil religion,” but these same judges are quick to rule against the government when they believe that citizens are in any way coerced or pressured into acknowledging faith.
For other justices, the First Amendment does not prohibit government recognition of faith completely. Rather, government can and should accommodate faiths as long as one faith is not dominating or receiving more benefits than other faiths. These justices are interested in pluralism, saying that many different worldviews are welcome in the public square. Religious worldviews are welcome along with other worldviews as long as the religious views do not try to dominate.
Religious Expression, Pluralism, and the Public Square
As to how the First Amendment relates to religious expression on public land, the Supreme Court has said that what some refer to as the “Reindeer rule” ought to dominate. In other words, a Christian nativity scene or a Jewish menorah may be on public land as long as such a religious symbol is accompanied by non-faith-based artifacts like reindeer. The effort is to prevent people from feeling that government is advocating one particular point of view. This combining of symbols is a way of stating plurality in the public square.
It’s this debate about pluralism that is driving an important Supreme Court case that involves prayer in legislative sessions. In Greece v Galloway, Jewish and non-theist citizens of Greece, New York, jointly filed a lawsuit saying that the prayers offered at the official town meetings violated the First Amendment. Over the course of a decade the town had invited monthly “chaplains” to begin the meetings with prayer. There was no set procedure for inviting people. With only four exceptions, however, the chaplains were Christians, offering Christian prayers that invoked Christ and salvation.
When the lawsuit was first brought, the lowest federal court sided with the town saying without much discussion that the prayers did not advance a particular religion. There had been at least one Wiccan as a chaplain and this persuaded the court that Christianity did not dominate. However, on appeal, the Second Circuit sided against the town in an interesting decision that expressed support for invocation in legislative meetings as long as protections were put in place to avoid both advancement of a particular faith and advancement of a general “civil religion.” The judges said that it was the procedure that was at fault in this case, not the prayers themselves. The court suggested that if a procedure were really pluralistic and a variety of worldviews were represented, the chaplain invitations could survive.
Four decades ago, the Supreme Court said that prayers at legislative hearings did not violate the Constitution mostly because prayers were embedded in our history. Establishment Clause jurisprudence has developed quite a bit since those days, and it is unclear what the Court will do in this case. The Supreme Court could support the pluralistic approach of the Second Circuit, in which case the procedure of the town of Greece would have to change. But the Court could say all prayers violate the Constitution. Or it could swing the other way and say that the process used in Greece, New York, is perfectly fine.
This case is important because it has implications for a lot of other areas of life. This past week in California a federal judge ordered a large cross removed from a veteran’s memorial on public ground because, standing alone, it advanced Christianity. The case will be appealed to the Supreme Court this year because officials all over the country point out that crosses dominate almost all public land veteran memorials.
Furthermore, for Christian feminists this concept of pluralism is an important one. We have to decide if we believe that government should make room for a variety of perspectives or if government should be a tool by which one perspective dominates. For centuries, a majority voice discriminated against women and same-sex relationships. Now that the public tide seems to be swinging the other way, are we in favor of a similar majoritarian perspective that shuts out minority approaches we do not like, or do we want to protect even those voices that we believe are truly misguided?
Consider these public policy issues:
• Should a women’s college be allowed to discriminate on the basis of gender? What about a men’s college? Should government regulate this? And, how should transgender be factored in?
• Should Christian churches be allowed to discriminate in favor of employing Christians or should they be subject to non-discrimination law in all ways? What about Christian wedding cake bakers that want to hire only Christians or want to turn away same-sex clients? Are the employment issue and the consumer protection issue the same ? Or are they different?
These questions involve the same basic consideration: is it government’s job to implement what the majority wants, or is it government’s job to protect space for all?
I would argue that a biblical view of government includes justice for all groups, which requires some form of pluralism. For most of us, when our view is in the minority, we advocate pluralism. But, when our view is in the majority, it may be very hard to argue on behalf of those who see the world differently than we do. We have to challenge ourselves and others to think through when pluralism is appropriate and when it might be harmful.
My hope is that the Supreme Court justices will either remove prayer from the legislative process or will affirm the pluralistic approach of the Second Circuit. If the Court decides that Greece, New York, may do whatever it wants to, pluralism will be dealt a blow.
© 2013 by EEWC-Christian Feminism Today
