The most important turn in Monday’s Supreme Court ruling in Town of Greece v. Galloway—a case that probes the constitutionality of explicitly religious prayer in legislative sessions—isn’t that the courts no longer have a role in policing the Establishment Clause, or that pretty much any sectarian prayers can be offered at town meetings so long as they do not “threaten damnation, or preach conversion” to minority religions. No, I think the interesting change in the court’s posture today is that sectarian prayer in advance of legislative sessions is no longer characterized merely as “prayer.” In the hands of Justice Anthony Kennedy, who writes for five justices, these benedictions are now free and unfettered “prayer opportunities.” And “prayer opportunities” are, like “job creators” and “freedoms,” what make America great.
“To hold that invocations must be nonsectarian,” Kennedy wrote for the five-justice plurality, “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech.” In other words, not only did the court move the goal posts—from now on sectarian prayer will be permissible until it isn’t—but it also threw out the rule book and benched all the refs. From now on, says the court, it’s improper for government or judicial officers to second-guess the motives of the prayer policy or the prayer giver. To the extent the court ever played a role in ensuring that minority religious rights were not trammeled by well-meaning majorities who fervently believe that here in America we are all basically just country-club Judeo-Christians with different hairstyles, the jig is up: From now on we just do as the religious majorities say, so long as nobody is being damned or converted.