Cafeteria constitutionalism sets course for 'slippery slope'

By now, most political observers in the state know about the kerfuffle that two state senators caused earlier this month when they walked out of the Senate chamber during an Islamic prayer delivered by a local imam. [“Senators object to reading of Muslim prayer,” article, April 6]

One senator responded to the invocation after re-entering the chamber, calling it “despicable” that the Senate would open session with a prayer from the Quran. The second later defended his and his colleague’s decision to exit the chamber, noting that “free speech isn’t a one-way road, but a busy intersection.”

He is quite correct. The First Amendment affirms the senators’ right to freely exercise — or not exercise — whichever religious rites they choose, regardless of whether their opinions of Islam are correct.

But the same Constitution that protects your right to object to Islam also undermines the senators’ objection to Islamic prayer.

Constantine Malmberg

The senators’ protest was timely: just under three years ago, in Town of Greece v. Galloway, the U.S. Supreme Court ruled 5-4 that the town of Greece, New York, could open each day of its legislative session with a prayer.

The majority’s opinion in Galloway (authored by Justice Anthony Kennedy and supported by the court’s constitutionalist wing, including the late Justice Antonin Scalia) stated that legislative bodies opening their daily business with prayer did not violate the Establishment Clause of the First Amendment as long as 1) the prayer does not coerce participation from non-adherents; and 2) the legislature does not discriminate against minority faiths in determining who may offer an opening prayer.

The Republican walkout illustrates that the first criterion is satisfied, but the senators’ vocal objection to a Muslim prayer directly contradicts the second criterion.

More generally, America’s history is defined more by the principle of religious liberty than nearly any other democracy. De Tocqueville famously argued that Americans’ religious convictions underpinned the same values and mores that allowed its democracy to flourish, even as other democratic experiments were failing in Europe. Irrespective of party or ideology, we ought to take great pride in that shared value.

The senators, of course, are entitled to their private opinion of Islam or any other faith system. But conservatives, Christians and constitutional textualists — including these two senators — should not only acknowledge the vital importance of religious liberty; they should actively advocate for it.

Abridging the right of a religious minority to deliver the Senate’s invocation jeopardizes the right of every other religious faction to participate in this custom. Indeed, the senators’ vision is so contrary to the majority opinion in Galloway that realizing it could put the General Assembly on a slippery slope toward losing prayer in the chamber altogether.

Put more simply, religious liberty is premised, in part, on equal treatment — and no religious group is equal unless every religious group is equal. That should give these senators, and any person of faith, pause.

Like free speech, religious tolerance is important when it agrees with our world view, and even more important when it doesn’t. Asking for our government to be the arbiter of what does or does not constitute “acceptable” religious practice is not a conservative or constitutional value. On the contrary, it is an invitation for government overreach and the erosion of the very religious liberties that we hold dear.

EDITOR’S NOTE: Mr. Malmberg is a former Kent County GOP Chair with more than 30 years of involvement in the Republican Party. He currently practices law in Dover.