In a move sure to please religious conservatives, President Obama's Justice Department filed a brief in the Supreme Court in favor of allowing overtly Christian prayers before city council meetings. It's an inexplicable move, and it's one more befitting a Republican administration than one headed by a Democrat and a constitutional scholar.
The case is Town of Greece v. Galloway, and it was argued Wednesday in the Supreme Court. Greece is a suburb of Rochester, N.Y. Until 1999, its town board opened meetings with a moment of silence — a practice that excludes no one. But then Town Supervisor John Auberger initiated a policy change, and the town began inviting clergy to open meetings with a prayer.
These prayers were decidedly and explicitly Christian. From 1999 to 2007, the town invited exclusively Christian ministers, most of whom included explicitly Christian content. Some elaborated on Christian theology, including such discussions as "the saving sacrifice of Jesus Christ on the cross" and "the plan of redemption that is fulfilled in Jesus Christ."
These prayers were delivered to an audience of local residents. All of these people — Christians and non-Christians — are asked to stand and bow their heads for many of these prayers. But Muslims, Jews and nonbelievers cannot in good conscience participate in a prayer to Jesus Christ, and doing so shouldn't be the price of civic participation.
Two Greece residents — a Jew and an atheist — complained to the town board in 2007 about the prayer practice. Their complaints did produce an immediate, though short-lived, change to the practice.
Eventually, this led to a federal appeals court concluding that the town's prayer practice had unconstitutionally affiliated the town with Christianity.
Given the state of the law, the importance of religious inclusivity and the facts of this case, I assumed that if the Obama administration participated at all, it would side with the plaintiffs. But the administration did just the opposite. It's hard to fathom how the administration arrived at its conclusion, and I hope the Supreme Court will reject it.
I hope the court will take to heart the words of Justice Sandra Day O'Connor, who shortly before she stepped down from the court wrote in a decision: "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. …Why would we trade a system that has served us so well for one that has served others so poorly?"
Why indeed? I wonder if the Obama administration has an answer.
Erwin Chemerinsky is dean of the UC Irvine School of Law. He wrote this for the Los Angeles Times.