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Friday, December 9, 2016

WASHINGTON — To understand why religious freedom matters, put yourself in the position of someone who is part of a minority faith tradition in a town or nation that overwhelmingly adheres to a different creed. Then judge public practices by how they would affect the hypothetical you.

This act of empathy helps explain why religious liberty in the United States is such a gift. It is based, as Supreme Court Justice Elena Kagan wrote in her dissent to Monday’s public prayer decision, on “the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

Religious liberty will not disappear because of the court’s 5-4 ruling that the government of Greece, NY, could begin its town board meetings with prayers — even though, as Kagan put it, “month in and month out for over a decade,” they were “steeped in only one faith,” in this case Christianity.

But the court majority not only failed the empathy test but also lost the opportunity Kagan offered to find a balance that would both honor religion’s role in American public life and safeguard the rights of those whose faith commitments diverge from the majority’s.

The facts of the case are straightforward. As Justice Stephen Breyer noted in his own dissent, from 1999 to 2010, at more than 120 of Greece’s town board monthly meetings, only four opening prayers were delivered by non-Christians. The four exceptions, Breyer pointed out, all “occurred in 2008, shortly after the plaintiffs [in the case] began complaining about the town’s Christian prayer practice.”

The court ruled that the government of Greece had not violated anyone’s rights. “Ceremonial prayer,” Justice Anthony Kennedy wrote for the majority, “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 the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgement of their belief in a higher power, always with due respect for those who adhere to other beliefs.”

The town was justified, Kennedy argued, in drawing on clergy from houses of worship within its boundaries, which happened to be Christian. Greece’s non-Christians worship at congregations outside its borders.