On August 22, 2011 a memorial dedicated to Martin Luther King, Jr., was opened to the public in Washington, DC. Several hitches plagued the opening, both natural and human. Regarding the former, Hurricane Irene caused a several-day delay of the memorial’s dedication ceremony. Regarding the latter, some contemporary followers of King’s example such as Cornel West criticized the monument, noting that “a stone and mortar edifice” could not adequately memorialize King’s “flesh and blood sacrifice” (2011). King, West insisted, would not have wanted the symbolism of a monument in his memory. He would have wanted the substance of a revolution. A proper memorial for King is not an artifact we can admire, but an action we can emulate.

I had the privilege of visiting this memorial for the first time on January 19, 2015 (Martin Luther King, Jr. Day). The size and scope of the monument are indeed awe-inspiring, but I couldn’t help but agree with Cornel West that the monument did King’s memory a disservice. Beyond the fact that it did not amount to a flesh and blood revolution, the stone and mortar edifice was devoid of a particular kind of content: other than a few Biblical allusions, the monument lacked any explicit reference to the role religion—Christianity in particular—played in shaping King’s (himself a pastor) political sensibilities. To the casual observer of the memorial unschooled in the American Civil Rights Movement, King looks like a wholly areligious advocate of social justice.

This is striking not only because King was a religious person, but because so many DC memorials dedicated to less religious individuals make explicit reference to religion. While I cannot claim special insight into the actual deliberations that led to the construction of a memorial devoid of religious references in honor of a religious person, it seems reasonable to assume that the perception, widely shared in the United States, that religion is divisive is partly to blame. If the purpose of the memorial is to promote wide reverence and admiration of a public political figure who inspired a nation to pursue social justice, then focusing too heavily on the religious character of this figure might limit the scope of this example’s appeal. Many citizens of the United States, including many who seek to advance social justice, affirm belief systems fundamentally opposed to Christianity. The absence of any explicit reference to King’s religion is thus partly inspired by the desire to make all observers of the monument feel equal regardless of their religious beliefs.

This claim—that equality requires excluding reference to religion in or on public political things (governing institutions, public spaces, memorials, etc.)—is not uncommon in American political discourse; in fact, it recently was given a clear statement in Justice Elena Kagan’s dissenting opinion in the 2014 Town of Greece v. Galloway (Town of Greece) Establishment Clause case. The public political thing under consideration in this case is not a monument, but the public political space of a town board meeting. Another view, one which was articulated in Justice Anthony Kennedy’s majority opinion in the same case, is the American tradition of religious disestablishment achieving equality not by excluding religion, but by allowing for the expression of religious beliefs in public spaces, while ensuring that no one religious belief is privileged over others. Drawing on the work of Canadian philosopher Charles Taylor, an argument can be made that “secular,” public political spaces like a town board meeting should be understood as arenas where plural sectarian comprehensive views may be articulated over time rather than as arenas where these sectarian differences are ignored altogether. In this light, the decision to exclude reference to religion in King’s memorial was misguided.

Two Interpretations of the Establishment Clause

There are too many competing interpretations of the Establishment Clause to cover in an essay of this length, so I will limit the present discussion to two. The first, strict separation, is the most widely recognized in American public discourse, but it has not historically earned the Court’s favor. The second, nonpreferentialism, is the interpretation that both the majority and Kagan’s primary dissent advance, in some form, in the Town of Greece case.

According to strict separationists, the religion clauses “erect an absolute barrier to formal interdependence of religion and the state” (Stone et al. 2012, 659). Thomas Jefferson’s writings on the interaction of religion and politics most closely align with the strict separationist thesis; Jefferson implies in several works that the purpose of Constitutional provisions like the Establishment Clause is to protect government from religion’s corrupting influence. Because religion, as Jefferson understood it, was a matter of individual conscience, it could not be manipulated by government coercion. In his Notes on Virginia Jefferson writes, “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit” (2005, 394). On the other hand, government could easily be corrupted by the self-interested power grabs of sectarian factions at the expense of the common good, which Jefferson believed was best served by reason and free enquiry (ibid.).

Strict separation does not hold sway in the Court today. There are at least two reasons for this. First, it is hard to eliminate the interdependence of religion and the state, no matter how one construes it. “Secular” laws and policies inevitably affect “religious” activities in some way (sewage, roadwork, etc.), and “religious” activities inevitably affect the political process that creates laws and policies in some way (shaping opinions, mobilizing voters, etc.). If a church burns to the ground, it seems unreasonable to expect a tax-funded fire department to stand idly by; and if a clearly unjust ruler comes to power it seems unreasonable to expect men or women of the cloth to bite their tongues if they feel it is their duty to speak out in protest. Second, historical American political practice has allowed for the intertwining of religion and government ever since the ratification of the Bill of Rights. For example, we have publicly-funded military and legislative chaplains, presidents who regularly offer ceremonial prayers, and many national songs and symbols with religious referents.

Given the unreasonable expectations of the strict separationist interpretation, the Court has explored several more reasonable interpretations. At present, the interpretation favored by the Court is a variant of nonpreferentialism, which posits that “government may not favor one religion over another, nor may it disfavor any particular religious view (including antireligious views), but it may support religion in general.” (Stone et al. 2012, 660). The question, then, is how government may generally support religion.

Town of Greece v. Galloway

Beginning in 1999, the town board in Greece, New York, introduced the practice of beginning its meetings with an invocation given by a member of the local clergy who was almost always a Christian. Galloway (et al.) filed suit, claiming that the lack of religiously diverse prayers signaled a violation of the Establishment Clause. As an alternative, Galloway suggested that meetings should begin with an “inclusive and ecumenical” prayer appealing to a “generic God.” The Court decided against Galloway. Because the Town of Greece permitted non-Christian members of the community to lead prayers, the Court found that the Establishment Clause was not violated. It is noteworthy that Galloway did not call for an end to the practice of invocation, but argued that the practice needed to be amended because preference was given to Christianity and the invocations were far too sectarian.

Anthony Kennedy, writing for the majority, and Elena Kagan, writing the primary dissent, both rely on the precedent of the 1983 landmark Marsh v. Chambers case to make their arguments. In Marsh, the court ruled that the Nebraska State Senate’s practice of opening legislative sessions with a prayer from a publicly-funded chaplain did not violate the Establishment Clause.

According to Kennedy, at least two aspects of the Marsh decision supported the Town of Greece’s case. First, a tradition of sectarian (including non-Christian) legislative prayer performed by a chaplain or other non-official religious figure prior to Congressional sessions has existed at the national level of government in the United States since its Founding. This shows that the Establishment Clause does not prescribe a hard and fast rule for the Court to adjudicate Church-State conflicts. Instead, the Court must rely on a common sense understanding of the relationship between the Establishment Clause and these practices that has been slowly cultivated over the last 225 years. Second, there are certain secular purposes advanced by the practice of sectarian legislative prayer. In Marsh, the Court found that the purpose of such prayers is “to lend gravity to public proceedings” (19). Later in his opinion, Kennedy cites other Establishment Clause decisions to put forth a second secular purpose: sectarian legislative prayer acknowledges “the place religion holds in the lives of many private citizens.” Legislative prayer can achieve these purposes on Kennedy’s account only if (1) government officials do no more than advise a non-official prayer giver without dictating the content of the prayer (as suggested by Galloway) and (2) the government maintains “a policy of nondiscrimination,” which the Town of Greece enacted by indicating that “it would welcome a prayer by any minister or layman who wished to give one” (17).

 According to Kagan, at least two aspects of Marsh supported Galloway’s case. First, the audience of the prayer under consideration in Marsh importantly differs from the audience under consideration in Town of Greece. In the former, the audience consists of the legislators themselves. In the latter, the audience consists of “ordinary members of the community” (12). Second, the prayers considered in Marsh were ecumenical, whereas the prayers considered in Town of Greece were sectarian. Kagan uses the hypothetical example of a Muslim citizen going before the town board and being confronted with the request to “pray ‘in the name of God’s only son Jesus Christ’” to show how these two aspects of Marsh support Galloway (17). The hypothetical prayer is clearly sectarian, rather than ecumenical, given the explicit pronouncement that Jesus Christ is God’s only son. More importantly, however, the Muslim citizen’s status as an equal, ordinary, member of her community is altered if she refuses to participate in the prayer. The prayer reflects the board’s “and the community’s most cherished beliefs,” so by refusing to participate, the Muslim citizen signals to other community members that she is not their equal.

Underlying Kagan’s reasoning is an insistence that a citizen of a community should not have to take into consideration past and future actions in that community’s public political space to feel like an equal citizen in the present. She writes,

In performing civic functions and seeking civic benefits, each person of this nation must experience a government that belongs to one and all, irrespective of belief. And for its part, each government must ensure that its participatory processes will not classify those citizens by faith, or make relevant their religious differences. (16)

A citizen of an American community must be immediately welcomed in public political space as an American among Americans, leaving her sectarian attachments and their historical relations with government at the doors of City Hall. Any prayer given in such a space must be a neutral prayer in the sense that any American citizen could perform it in good conscience.

Underlying Kennedy’s reasoning, on the other hand, is an insistence that citizens cannot base their sense of equal status on present experience alone. Instead, they must observe whether inclusion has happened or will happen with time. Bringing this back to Kagan’s hypothetical example, those like Kennedy, who advance a view of inclusion over time, would note that the Muslim citizen is too quick to judge that “Christian worship has become entwined with local governance” if her judgment is based on her experience in the present town board meeting alone.

The Case for Temporal Equality

Charles Taylor’s recent work on secularization can shed light on the merits of Kagan’s and Kennedy’s opinions. Taylor calls the cultural aspect of secularity “secularity 3.” Secularity 3 characterizes a culture when “belief in God is one option among others, and frequently not the easiest to embrace” (2007, 3). In other words, a culture is “secular” in this sense when there is a widespread recognition that God may or may not be, that God is no longer a given in the same way God was in, for example, Medieval Christendom. In order to ensure stability, a liberal democratic political system must adjust itself to this cultural fact.

Clearly, cultural secularity has political implications in liberal democracies like the United States; Taylor outlines these implications in a later essay in terms of three potentially conflicting political goods: liberty, equality, and fraternity. In this situation, the focus is on equality and fraternity. Taylor claims the former good requires that “no religious outlook… can enjoy a privileged status, let alone be adopted as the official view of the state,” whereas the latter good requires that “all spiritual families must be heard” in public political space (2011, 309). Taylor is right to note that the relationship between equality and fraternity is tense: equal public political space requires the use of neutral speech in the present, whereas fraternal public political space requires the use of sectarian speech in the present. However, I disagree with Taylor’s claim that equality and fraternity are wholly distinct concepts. Each is best understood as a qualified form of equality: spatial equality and temporal equality.

Spatial equality, which I associate with Kagan’s position in Town of Greece, is made manifest through political imitation of what Taylor calls a “direct-access society.” In a direct-access society, there is a widespread belief that moments of significance do not happen over time. Instead, all things significant are immediately available to myself and all others who are equalized with me through the sharing of a similar object (e.g. a national identity) in the present. That is, all things significant are simultaneous; they can happen at the same time for those who are horizontally—or equally—related. Ordinary persons can be equalized by the shared object of something like a transnational identity in our increasingly multinational polities, but they cannot be equalized by religion, which divides rather than unites citizens who share the same transnational identity. The state, according to Taylor, is the shared object that equalizes liberal democratic citizens (2007, 210). This is clearly the kind of idea to which Kagan is appealing when she claims that American government “belongs to one and all” (16). A neutral, ecumenical, prayer prior to a town board meeting achieves this end.

Temporal equality envisions society as melodious rather than harmonious. For many—though by no means all—citizens, exposure to a prayer that purports to be “neutral” or “clearly American” would illicit the same sense of differentiation in the present as that experienced by Kagan’s hypothetical Muslim citizen exposed to a Christian legislative prayer. The task of devising a “nonsectarian” prayer is, as Kennedy notes, “futile” (14). Kennedy suggests that instead of attempting to achieve a sense of equal status through the futile method of devising a neutral or nonsectarian prayer, equal status should be understood as a product of a temporal process. Every religious and nonreligious view must be given an opportunity for recognition in public political space if such recognition is pursued. These moments of recognizing significant religious difference are gathered over time, in the same way that a piece of music gathers notes to create a melody (Taylor 2007, 56). Taylor borrows the musical metaphor from St. Augustine, but this sectarian source should not invalidate the idea of melodious citizenship.

The American melody need not be popular in style, and, if the reader will permit me to reason analogically, it is worth noting that jazz and blues are the most “American” styles of music, and both heavily rely on off-pitch blue notes. The blue note has a discordant and discomforting effect on the listener, similar to the discord and discomfort caused by the introduction of religious difference to public political spaces. Yet without this discord and discomfort, the melody in this particular political composition would be incomplete. An American citizen may be considered an equal in public political space when her possibly discordant religious notes are given an opportunity to be heard in the ever-evolving American political melody. As long as this opportunity is granted, the Establishment Clause is not violated.

Martin DeNicolo is Assistant Professor of Political Science at Davis & Elkins College in Elkins, West Virginia.

Works Cited

Jefferson, Thomas. Political Writings. Joyce Appleby and Terrence Ball, eds. Cambridge, United Kingdom: Cambridge University, 2005.

Stone, Geoffrey R., Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, and Pamela S. Karlan. The First Amendment: Fourth Edition. New York: Walters Kluwer Law & Business, 2012.

Taylor, Charles. Dilemmas and Connections. Cambridge, Massachusetts: The Belknap Press, 2011.

_____. A Secular Age. Cambridge, Massachusetts: The Belknap Press, 2007.

Town of Greece v. Galloway, 572 U. S. ___ (2014). https://supreme.justia.com/cases/federal/us/572/12-696/case.pdf (accessed October 10, 2014).

West, Cornel. “Dr. King Weeps From His Grave.” New York Times, August 25, 2011.