Halfway into the oral arguments in Town of Greece v. Galloway, atheists became somewhat of a punchline, as the Justices challenged Douglas Laycock to come up with a prayer that wouldn’t put anyone off. Here is how that went:
Justice Samuel Alito: All right. Give me an example. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer… Wiccans, Baha’i.
Chief Justice John G. Roberts: And atheists.
Justice Antonin Scalia: And atheists. Throw in atheists, too.
[Laughter]
Douglas Laycock: –We — we take Marsh to — to imply that atheists cannot get full relief in this context, and the McCreary dissenters said that explicitly. So points on which believers are known to disagree is a — is a set that’s in the American context, the American civil religion, the Judeo-Christian tradition–
Justice Samuel Alito: Give me an example then. I think the point about atheists is a good point. But exclude them for present purposes and give me an example of a prayer that is acceptable to all of the groups that I mentioned.
Notice here that even the distinguished scholar who is arguing that we should rebuild Jefferson’s wall of separation has given up on the possibility that atheists can obtain full relief in this legal and factual context, even though one of his clients (Linda Stephens) is an atheist. I find it somewhat telling that we aren’t allowed to seriously put forward the obvious and definitive solution to the state-sponsored prayer problem: Just stop doing it. Instead, the majority decision contemplates the formidable (perhaps impossible) of separating out unduly sectarian religious doctrine from that which is considered sufficiently interfaith or interdenominational:
The difficulty, indeed the futility, of sifting sectarian from nonsectarian speech is illustrated by a letter that a lawyer for the respondents sent the town in the early stages of this litigation. The letter opined that references to “Father, God, Lord God, and the Almighty” would be acceptable in public prayer, but that references to “Jesus Christ, the Holy Spirit, and the Holy Trinity” would not. . . Perhaps the writer believed the former grouping would be acceptable to monotheists. Yet even seemingly general references to God or the Father might alienate nonbelievers or polytheists.
There we are again, spoiling everyone’s devotional fun by being alienated. But wait, there is more. Justice Kennedy also has some helpful advice for us on how to deal with the coming wave of sectarian prayers authorized by the high court:
Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconstitutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure.” Marsh, 463 U. S., at 792
Such obliviousness as to what it is actually like to live as a member of a religious minority group in a small town makes me wonder whether the good Justice needs to thoroughly check his religious privilege. The truth is that walking out from the religious aspect of a public ceremony sends a clear and pointed message to those in charge, and it is not a message of respect but of deliberate defiance and personal affirmation of outsider status. Unlike Justice Kennedy, I’ve actually attempted this form of protest on occasion and at best I was met with barely-concealed hostility. As it turns out, it is actually sort of tricky to not make a nuisance of oneself when trying to leave a room from the front while everyone is enjoying a moment of reverential contemplation. Even if that wasn’t the case, though, it should be considered unconscionable to expect us unbelievers to excuse ourselves quietly from any public ceremony and then sneak back into our seats in order to participate fully in civic life.
