Courtroom Invocations Did Not Violate Establishment Clause

Someone once asked me if I listened to podcasts. There are lots out there. I do listen to a few such as Gay USA, Strict Scrutiny, and Freedom From Religion Foundation offerings.  FFRF also has television programs, which are available on their website as well as 10 A.M. on Sunday (Channel 11) at the moment.  The new season recently began. 

I have noted in the past that my concern is freethinking though long thought that government mixture of church and state was a bad idea. I was somewhat more sympathetic to equal access displays in recent years.  I still find "under God" in the Pledge of Allegiance and the like problematic.

What about invocations before public meetings?  I find them problematic though am willing to put them in perspective. Having a chaplain (usually Christian) open the House or Senate day each day is mixing church and state.  Marsh v. Chambers upheld the practice (including having a long term official chaplain who was one denomination). Town of Galloway v. Greece upheld the idea, now applied to a town meeting, resisting a more limited challenge that not enough was done to make it non-sectarian.

Some places, and FFRF had someone who did them (one place decided to stop all invocations to avoid needing to invite them) on last weekend, sometimes have secular invocations.  These aren't too hard.  Just have the usual welcoming comments and remove the reference to "God" or the like.  One approach used is a moment of silence, including at the beginning of the school day.  If you want to silently pray, do so.  It's your choice.

The most recent battle upheld the use of an invocation of a justice of the peace in Texas.  The district court judge (Reagan nominee) decided the other way and the court of appeals was 2-1.  The district judge and dissent in part noted that Alito in Greece noted that case was not judicial and Alito even ridiculed the dissent for the specter of some judge having an invocation with the parties coerced into staying.    

The justice of the peace, this detail is noted in the majority opinion, ran for office in part in support of a chaplaincy office.  Some family did not have one available when he was performing coroner duties. The suit, however, was not a chaplain service to have people available in such situations. It is about the use of a chaplain to open a judicial setting. 

As the two opinions against the practice note, unlike legislative invocations, this would not even meet the historical practice test the Supreme Court seems to rely on these days.  This is not about a court crier saying "God Save This Honorable Court."  It is not one-off ceremonies opening court sessions for the term or whatever that might include a chaplain or invocation. It is a regular practice with real content, not just a line said by rote.*

As the lawyer noted, clients do not want their attorneys to be showy and make some sort of protest, stepping out of the court while invocations are performed. The invocations are particularly important to the justice of the peace given his election campaign and overall mindset.  Facts in the record.  An invocation at a legislative meeting might be said to be just for the legislators. Justice Kagan noted how Greece crossed the line here.  This case surely does as shown by Alito of all people noting adjudication is different.  Now, it is not.  

I saw a few people note how this is a form of "Christian nationalism." I am wary about using that term since it is a mindset that means more than wanting to start the day with an invocation that is likely most of the time going to be Christian.  The opinion staying the lower court judgment spoke of it as "a brief invocation or words of encouragement," which is misleading too.  It is a religious ceremonial event.

The use of these ceremonies and mixing church and state very well can be used in the promotion of Christian nationalism. "Under God" was added to the Pledge of Allegiance in the 1950s to make sure people knew we weren't a bunch of foreign atheistic communists.  This is not the blatant type that was involved on January Sixth or support serious limits on freedom in the promotion of religious beliefs.  It can add up.

Those who support these ceremonial events are motivated in various ways, however, and unconstitutional (or even bad policy) crossing of the church and state line come in various degrees.  That is all that need to be said here. A governmental agent should not start -- even if they generous make clear that "you really don't have to stay" -- with a religious event.  And, this ruling expands on an already bad policy into new areas.

This is not a disrespect to this specific person. Again, it is not even against the chaplaincy program as a whole to have them available if someone wants one in various contexts involving government activities.  So, you might have a chaplain in prison.  Or, when a police interviews you after a crime or to help deal with an old, perhaps mentally confused person.  That is an individual matter, not a government ceremony involving the public.

The person here thought it appropriate to use his government position to spread his own religious beliefs  with dissenters just people that are generously given exemptions. That is not really how it should work, but too often courts these days have a selective view of "free exercise." 

----

* I don't totally handwave that sort of thing, but there are degrees.  One thing that some people can understand the criticism more in references to gods on money.  Not only does everyone have to use the stuff, but they might be a bit uncomfortable about the mixture of god and mammon.