everyone but Christians from practicing their faith. Based on that reasoning, the Court perpetuated legal discrimination against religious minorities. But in Hobby Lobby, the Court treated the Affordable Care Act—a health insurance mandate—as if it were not religiously neutral. According to the majority opinion, individual evangelical claims of free religious exercise can supersede a federal law about health insurance, so that a business could avoid providing the coverage the law requires. Clearly, the notion of “neutrality” is shaped by the deep effects of Christian normativity on the Christian-majority Court. The collective message of the Court’s free exercise cases is that a burden on Christian practice offends the Constitution, while a burden on non-Christian practice does not.
Because most Supreme Court justices are themselves born, raised, socialized, and educated within the symbols and structures of White American society, with its deep Christian normativity, they tend to reach decisions that reflect this influence. The power of social norms, particularly those shaped by centuries of Christian hegemony, shapes “the law of the land.”31 Indeed, as we will see in the next chapter, an earlier generation of Supreme Court justices stripped a Sikh immigrant of his citizenship because “the common man knows perfectly well” that a Sikh is a “brown Hindu” and not a “white person” entitled to US citizenship.32
Litigation and debates over the Establishment Clause (“Congress shall make no law regarding the establishment of religion”) also show the strong influence of Protestant norms, and a bias in favor of behavior that is clearly Christian. In 2014, for example, the Supreme Court ruled that beginning a public meeting with prayer from a “volunteer chaplain” does not violate the Establishment Clause. The plaintiffs in Greece, New York, were not even trying to eliminate prayer from public meetings—only asking the Court to instruct the town that prayers should be “inclusive and ecumenical” and addressed “to a ‘generic God.’” Greece’s practice was to have chaplains offer only Christian sectarian prayers—“prayers steeped in only one faith,” to quote Justice Kagan’s dissent. The town had never invited non-Christian clergy to deliver the prayers. A lower court concluded that these practices affiliated the town with Christianity, excluded other faiths, and therefore violated the Establishment Clause.33 But the Supreme Court found no problems with how Greece conducted its public meetings. The majority opinion looked to jurisdictions across the country and throughout US history, including the First Congress of the United States in 1789, and concluded that employing clergy to open legislative meetings with prayer is a “tradition long followed in Congress and the state legislatures.” As long as Greece’s policy “fits within tradition”—that is, as long as Greece followed traditions established in colonial times, when the Puritan ethos reigned and all legislators were Christian—its policy of opening every meeting with Christian prayer would not violate the Constitution.34 The Court rejected the plaintiffs’ theory “that the constitutionality of legislative prayer turns on the neutrality of its content,” because a representative government should not appear to favor one faith over another. In fact, the Supreme Court ruled that telling clergy to constrain their prayers to “generic” or neutral references to the divine would violate the Constitution because it would amount to government censorship of Christian clerics.
Like Yoder in the Free Exercise context, the Supreme Court in Greece relied on the fact that legislative prayer was a long-standing practice at all levels of American government. Because it was traditional, the Court reasoned, it could not be unconstitutional. Five of the Court’s six Catholics joined the majority opinion; only Sonia Sotomayor joined the Court’s three Jewish justices in dissent. Here again is the deep power of Christian normativity: under the Greece precedent, Christian prayer to convene a public meeting is literally subsumed within the definition of the American way of life. Even government chaplains, ordained by religious authorities and paid for by taxpayers, do not constitute an “establishment of religion” because—like Legislative opening prayers—the Supreme Court has ruled that such publicly employed chaplains were part of tradition in state and federal legislatures throughout American history. But what kinds of clergy were selected to these roles over the years? Not rabbis, imams, or pandits. If a government meeting opened with prayers from a Hindu priest, an imam, or a rabbi, would it be similarly received? The answer is no. And all this still fails to address the millions of Americans who do not believe in prayer at all, but who nonetheless, when attending public meetings, as is their right, promptly hear the words, “Let us pray.”
Even if Galloway and her co-plaintiff had gotten the “generic,” “nonsectarian” prayers they asked for, those prayers would still promote Christian norms. A chaplain who carefully omits references to Jesus will still be speaking a prayer in English, likely using words like “thee” and “thy” and a vernacular and cadence familiar to Christians, and concluding with an “Amen.” Any veneer of religious neutrality accomplished by omitting references to “Your Son our Savior,” or the words “in Jesus’ name,” is just that: a veneer. The chaplain’s words will still sound like a Christian prayer to everyone in the room—especially the religious minorities.
This is not to say that the Establishment Clause’s protections from coercive state-sponsored religious activities are never applied to Christianity. For example, the Establishment Clause was held in two major Supreme Court decisions, Engel v. Vitale (1962) and Abington Township School District v. Schempp (1963), to prohibit schools from requiring students to participate in devotional prayer and mandatory Bible reading. Sadly, the tragedy here is not that Engel or Schempp did not go far enough, but that the Christian majority saw this as an attack on Christians and schools and was successful in perpetuating the idea that government is “taking religion out of schools.” The goal was never to remove religion, but to remove compelled prayer and forced religious practice: school rules and traditions that obligated children to pray Christian prayers under the supervision of their teachers and coaches. School administrators and policy makers have often taken these rulings much too far—treating them as a virtual ban on the discussion of religion in schools, as if schools must exist as “religion-free zones.”35
Treating religion as a barred topic in school discourages students from expressing important elements of their identity. Like “color-blind racism,” it perpetuates the “optical illusion” of freedom of religion because it allows educators to deny the reality that religion is in schools every day—specifically one religion, Christianity. Christianity is there, from the calendar to the culture to the history books. Pretending otherwise results in curricula that ignore religion’s role in history and society, and allows educators to ignore religion-based conflicts and bullying when the right thing to do is to talk openly about the issue. I think of a seventh-grader I encountered years ago. An Indian American Hindu immigrant, he was held down in the lunchroom and force-fed a hot dog by several classmates who thought it would be funny to make the religiously vegetarian boy eat beef. How does pretending religion doesn’t exist help that child articulate what happened to him? How does it help educators properly punish the perpetrators, or provide restorative justice to the victim?
In fact, the Supreme Court in Schempp wrote that the study of religions in the nation’s public schools is both legal and desirable:
It might well be said that one’s education is not complete without a study of comparative religions or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historical qualities. Nothing we have said here indicates that such study of the Bible or of religion, where presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment.36
In other words, the Establishment Clause does not prohibit the study of religion, or even the reading of sacred Scriptures in school as part of a course of study. Schools and teachers are forbidden only from crossing the line between academic presentation and religious advocacy—between “teaching” and “preaching.”37 Schools should promote awareness of religion and expose students to the diversity of religious worldviews; they are prohibited only from encouraging students to accept religion,
