One nation, pretty much under one God, justices say

The U.S. Supreme Court's ruling that explicitly Christian prayers opening meetings of government bodies do not violate the concept of the separation of church and state begs the question: had the case before the court been brought to defend an explicitly Muslim prayer, would the ruling have been the same?
The answer goes to the heart of diversity and our willingness to accept and tolerate our differences, be they gender, age, racial, ethnic, sexual orientation or religious.
Monday the high court ruled 5-4, voting along the court's usual liberal-conservative lines, that a town in upstate New York did not violate the Constitution by starting its meetings with a prayer offered by a "chaplain of the month." As it turns out, that chaplain was almost always Christian; although town officials say they have invited other faiths to participate.

Justice Anthony M. Kennedy

The prayers, said Justice Anthony M. Kennedy writing for the majority, were merely ceremonial. Such ceremonies have a tradition dating to the first meeting of Congress, he noted. In fact, the court ruled in 1983 that the Nebraska Legislature could open its sessions with an invocation from a paid Presbyterian minister because such ceremonies were "deeply embedded in the history and tradition of this country."
Kennedy echoed that reasoning.
"Ceremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define," Kennedy wrote.
By this rationale, such prayers are but a tip of the hat, as it were, to a creator, rather like the Pledge of Allegiance is a tip of the hat to the Founders. To be honest, we often mindlessly do both as a rote exercise because tradition demands it.
Justice Elena Kagan begged to differ in her dissent. The practices of Greece, N.Y. could not be reconciled "with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share of her government."
All five votes on the majority side came from Catholic justices: Kennedy, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. Three of the four dissenters are Jewish: Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. The fourth justice, Sonia Sotomayor, was raised as a Catholic, but she is said to be not a regular church goer.
Disputes over the propriety of ceremonial prayers have been fought many times, including recent disagreements at several agencies in San Joaquin County. In many cases they have been settled by rotating those offering the prayer among the faiths, requiring that prayers not be specific to a given religion, or both.
By this new ruling, such rules have been tossed. In fact, Kennedy made clear the courts cannot be asked to be the nation's prayer police.
“To hold that invocations must be nonsectarian,” he wrote, “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, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”
Greece, N.Y. had been sued by a two citizens, a Jew and an atheist, on First Amendment grounds. They were offended because, in Kennedy's words, the prayers "made them feel excluded and disrespected."
Kennedy's answer: tough.
"Adults often encounter speech they find disagreeable," he wrote.
True, but rarely are does government essentially require its citizens to put up with disagreeable speech as the price for participating in that government. Which brings us back to the threshold question posed earlier: would the ruling have been the same had the question been about a Muslim prayer opening a government meeting?
The answer is clear, especially if the court's defense centered on tradition and the myth that this nation's earliest settlers came here seeking anything but freedom for their own Protestant religion (only one Catholic signed the Declaration of Independence, the Maryland planter Charles Carroll).