37th national FFRF convention – Linda Stephens Speech ‘View from under the bus’

Linda Stephens and co-plaintiff Susan Galloway accepted Freethinker of the Year awards at the Los Angeles convention on October 25.

Good evening. I too would like to thank Annie Laurie and Dan and FFRF for this award. I am a longtime admirer of this organization, so this is a real honor.
I am Linda Stephens, the atheist plaintiff in the Town of Greece prayer case, the plaintiff who, you may have heard, got thrown under the bus at the Supreme Court.

Here’s how it all began: In 2002, I belonged to People for Parks, a parks advocacy group which had some issues with a town supervisor. That’s when I first started attending town board meetings and became aware that the new supervisor had started opening meetings with prayers delivered exclusively by conservative Christian pastors. Naturally, I thought this was wrong, but I just grumbled about it and did nothing.

Then, over time, I became aware of other inappropriate things that the supervisor was doing, such as hosting prayer services in the Town Hall every Jan. 1 and giving one of the churches government funds to put on its Fourth of July celebration.

I eventually learned that there was a local chapter of Americans United for Separation of Church and State in Rochester, so I ended up joining that group, got on their board and started getting monthly newsletters. I read about AU’s lawsuit in Forsyth County, N.C. It involved a situation very similar to what was going on in Greece, N.Y. The local government was opening meetings with Christian prayers, and the issue was being challenged in federal court by AU and the ACLU.

That’s what prompted me to speak with AU’s legal director in Washington about the situation in Greece. She asked if I knew of any other Greece residents who objected to these prayers. I put her in touch with Susan Galloway. Susan and I had both been active in the local chapter of the National Organization for Women, and I knew Susan’s views on this subject.

First, Susan and I met with town officials and asked them to stop the prayers. The deputy supervisor told us, no, they couldn’t do that because it would offend the pastors.

Next, AU legal staff tried to reason with the town. The supervisor ignored the letter. AU then went ahead and filed a lawsuit in federal district court in Rochester in February 2008 on my and Susan’s behalf. The lawyers wanted to use the same argument that they, and the ACLU, were successfully using in the Forsyth County case. They wanted the court to rule that Greece was violating the First Amendment because the prayers were almost exclusively sectarian.

To be clear, AU was not arguing that the prayers in Greece should be abolished altogether. They were arguing that in order to be in compliance with the First Amendment, the prayers would have to be nonsectarian.

We would have preferred to ask the court to declare all prayers before the Greece Town Board unconstitutional, but there was a problem with that. In 1983, in the Marsh v. Chambers decision, the Supreme Court had ruled that prayers before government meetings were legal so long as they were nonsectarian and delivered to a generic god without bringing up specifics of particular religions, such as Jesus.

You may wonder why I, an atheist, was willing to go along with this argument. My thinking at the time was this: The overwhelming number of pastors who delivered prayers in Greece had made it clear, in the paper and elsewhere, that they could never deliver nonsectarian prayers, that they were compelled by their religion to pray to Jesus.

So, I thought to myself, if the court buys the nonsectarian prayer argument, most of the supervisor’s pastors will bow out and that will end the prayer business in Greece. Problem solved.

Well, that’s not the way it went down. District Judge Charles Siragusa, a Bill Clinton appointee, didn’t buy the nonsectarian prayer argument and ruled against us. We then appealed to the 2nd Circuit U.S. Court of Appeals in New York City, and a three-judge panel ruled in our favor.

The court held that the town had violated the Establishment Clause by having “a steady drumbeat” of Christian prayers at meetings and for several other reasons. But the court did not like the nonsectarian prayer argument. As Judge Guido Calabresi, who wrote the decision, explained, requiring nonsectarian prayers would be in itself an establishment of religion, an establishment of the “OK” religions, of the religions that are sufficiently acceptable to the majority.

And, as Judge Calabresi also pointed out, the problem with nonsectarian prayers is that they leave out secularists, and of course people of minority faiths who pray to multiple gods.

Supremes take the case

After losing in the appeals court, the town and its Alliance Defending Freedom lawyers appealed to the Supreme Court. Our lawyers were a little nervous about that, but not real worried because the Supreme Court gets about 7,000 or 8,000 requests to hear cases each year and only take about 80 of those.
But the prayer case had one thing going against it. Similar cases were being litigated all over the country, and lower courts were coming down on different sides of the issue. Some courts were buying the nonsectarian prayer argument and others weren’t. When such a situation occurs, the Supreme Court is more likely to step in, which is exactly what happened.

Now our lawyers started getting worried. They knew what kind of Supreme Court they were up against. They also suspected that atheists and the rights of atheists were not high priority items for most of these justices. Justice Scalia, for example, had just recently given a widely reported speech in which he said that it was “utterly absurd to say that the Constitution cannot favor religion over nonreligion.”

The lawyers decided to stick with the nonsectarian prayer argument and soft-pedal much mention of atheists. By this time, I had become less than thrilled with the nonsectarian prayer argument, particularly after what the appeals and district courts had said about it. I brought up my concerns in a conference call with Susan and the AU legal department. But at this point, the legal staff was insistent and said we couldn’t switch horses in midstream.

Now I started worrying what our lawyer would say if one of the justices asked why an atheist would want nonsectarian prayer. But our lawyer told me not to worry — if that question were asked, she would give a “layered response.” It turned out there would be no layered response because the legal staff decided to have a law professor from the University of Virginia argue the case. His name was Douglas Laycock.

‘Under the bus’

Susan and I met Laycock for the first time on Nov. 6, 2013, on the day of oral arguments. Early on, Chief Justice Roberts asked Laycock, “We’ve excluded the atheists, right?” Astonishingly, the professor agreed. I’m sitting there listening to this and wanting to sink under my seat. Professor Laycock, it appeared, had chosen to ignore the fact that one of his clients is an atheist.

Then we’re pushed outside in front of the TV cameras, and all I can think of to say is, “Atheists need to come out of the closet like the gay community.”
Then the reporters and the bloggers start writing about this. The headline in The Economist is “Atheists thrown under the bus.”

Dahlia Lithwick, who reports on the Supreme Court for Slate magazine, told an audience at a conference the same thing: “Atheists were thrown under the bus.” And I’m told that the atheist Twitter community barraged the AU legal staff with tweets, the basic theme of which was “WTF” (What The F***).

Ron Lindsay, the president of the Center for Inquiry, wrote a blistering piece on the CFI website titled “We’ve excluded the atheists, right?” In the article, Lindsay pointed out that the Establishment Clause was intended to protect minority rights, not the sentiments of the majority. He also acknowledged the reality that the court was not going to overturn the Marsh decision and outlaw prayer before government meetings. Then he proceeded to give a “layered response” to Justice Roberts’ question.

This is in part what Lindsay said Laycock should have said to Justice Roberts: “[I]f this court is going to allow prayer, it’s clear that if we want everyone to feel part of the political community, there are certain things that must happen, one of which is that opportunities to open the business meeting must be offered to all, including to nonbelievers who are willing to deliver a solemn secular opening.”

One positive result

Of course we all know the outcome of the case. The court didn’t buy the nonsectarian argument and instead said sectarian prayers were fine. (Go ahead, guys, pray to Jesus all you want.) But the ruling did include one positive thing. It said that if municipalities have prayers before meetings, they can’t bar non-Christians from delivering them. So right after the decision came down, atheists and other secularists jumped on this and ran with it. They began delivering invocations at local government meetings all over the country, even in places like Huntsville, Ala.

In July, Dan Courtney delivered his atheist invocation at a Greece Town Board meeting where over 100 atheists and supporters showed up, along with a lone protester with a Jesus sign who refused to give his name to reporters.

This brings me to the present. According to the town’s new prayer policy, it appears that atheists might be allowed to deliver invocations at board meetings, but only if they meet certain requirements. Whether this new policy is just a ruse to keep atheists out is still unknown.

In the meantime, we atheists are getting our ducks in order. We have requested that the Sunday Assembly, which is the new atheist “church” in Rochester, and the Atheist Community of Rochester both be allowed to participate in the delivery of invocations.

What is my final assessment of this Supreme Court decision? I’m glad the court did not buy the nonsectarian prayer argument. I think this whole thing has been good for atheists in one big way. It has helped raise the profile of atheists and other secularists in positive ways all over the country.

Locally, in Greece, it’s interesting to see what’s been happening at the monthly board meetings lately. At the last two meetings, when the supervisor called on the designated Christian pastors to deliver the prayer, the pastors were nowhere to be found. They simply didn’t show up, and there was no explanation for their absence.

There has been speculation about why this is happening. It could be that the pastors don’t like the thought of sharing their platform with atheists. It could also be that they don’t like giving prayers that are now limited to one or two minutes at most. In the past, some of the pastors have given prayers that went on and on and on. It could also be that they aren’t able to deliver their prayers to the audience anymore. Now the podium faces the board members.

The final thing I would say is this court decision did not lay the issue to rest. There will be more litigation, and one day the Supreme Court may have to decide whether Judge Scalia is right when he says that the Constitution can favor religion over nonreligion and therefore bar atheists from delivering invocations before government meetings. That issue was not settled definitively in this court case.

Linda Stephens, FFRF Lifetime Member, has a B.A. in English (Western Michigan University), M.A. in English (SUNY-Brockport), master of library science (SUNY-Geneseo), Ed.D. (Syracuse University) and is a retired librarian.

Freedom From Religion Foundation