Into the Minefield: US Supreme Court to Consider Legislative Prayer in October

This October the United States Supreme Court will hear arguments in Town of Greece v. Galloway,  a case that could change the way that prayers are conducted in legislative proceedings. The Court will determine whether city council rules, which do not openly discriminate against non-Christians or permit prayer to be used to promote a particular religion, are unconstitutional when most of the people offering the prayers are Christians.

In 2008, two local residents sued the town Greece, New York, claiming that continued Christian prayer at the opening of town meetings was unconstitutional. They argued that the town arranged to have prayers and required everybody in attendance at legislative sessions to listen to the prayers before doing business with the legislature. Because the prayers were Christian, they argued, the town favored Christianity.

It has been 30 years since the Court issued its seminal decision in Marsh v. Chambers (1983) that non-denominational invocation prayers offered by a state-funded chaplain are permissible. The Court ruled that the practice was permissible because "the practice of opening legislative sessions with prayer has become part of the fabric of our society." Chief Justice Warren Burger, writing for the minority, continued. "To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

In what is considered a victory for originalism, the Court said that government funding for chaplains was constitutional because of the "unique history" of the United States since just three days before the ratification of the First AmendmentThis Amendment prohibits the government from making laws that establish religion or prohibit free exercise of religion, infringe the freedom of speech, infringe the freedom of the press, limit the right to assemble peaceably, or limit the right to petition the government for a redress of grievances., which contains the Establishment Clause, Congress had authorized hiring a chaplain to open sessions with prayer.

Six years after Marsh, the Supreme Court issued a complex ruling in County of Allegheny v. ACLU (1989) that a nativity scene displayed by itself inside a county courthouse in Pittsburg was unconstitutional because the "principle or primary effect" of the display was to advance religion. At the same time, the Court ruled that a menorah that was displayed alongside a Christmas tree and a sign about liberty did not have the primary effect of endorsing religion since Christmas and Hanukkah are part of the same holiday season which the Court found has secular status in society.

In Lee v. Weisman (1992), the Court ruled 5-4 that school officials could not invite religious representatives to deliver prayers at school functions because young students would be pressured to participate. The Court issued a similar ruling in Santa Fe Independent School Dist. V. Doe (2000) that formal student-led and initiated prayers were unconstitutional because, as Justice John Paul Stevens wrote, "The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual."

The town of Greece can argue that there is no discrimination in choosing who will pray and that the city is not openly trying to proselytize. In its brief, the town advances the arguments that its practice is constitutional under Marsh v. Chambers (1983), is consistent with the Establishment clause, passes the constitutional tests, and is part of a   longstanding and widely practiced tradition of legislative prayer. The town has also stretched to raise arguments that it cannot censor the speech of prayer-givers without violating the Free Speech Clause, and that citizens were not taxed "to support churches or compel adherence to particular tenets or beliefs."

The Obama administration has filed a brief in support of the town affirming the principles of separation of church and state and the need for prayers not to be used to proselytize, at the same time arguing that the situation in Greece does not rise to the level of violating the Establishment Clause. In what appears to be contradictory language, the administration brief states that even though sectarian prayer is permissible under Marsh so long as it does not proselytize or advance any one, or disparage any other, faith or belief, "neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers."

Given the Court's history since Marsh was decided in 1983, it is hard to understand why the Court would decide to take this case. (As we previously reported, the 2nd Circuit Court of Appeals ruled in 2012 that the practice was likely unconstitutional but provided room for prayer if others were given more of an opportunity to participate.) While the policies in the town of Greece would seem to open prayer to all comers, the reality is that only Christian clergy have offered prayers with brief exceptions when the litigation began to heat up. Perhaps this is why Christian organizations are lining up with amicus briefs in support of the town.

But why did the Supreme Court decide to take this case? Writing for the Second Circuit, Justice Guido Calabresi proposed what appears to be a new standard for determining whether a prayer or pattern of prayers is appropriate, "What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation."

It is possible that the Court may want to establish a standard that does not exclude religion as non-existent, but rather appreciates religious diversity involving a variety of faiths as part of the evolving fabric of American life. Could it be that the Court is considering changing from a secular to a multi-religious rubric of American life?  Or will the Court simply rule that expression of legislative prayer in a way that demographically favors Christianity is itself a violation of the Establishment Clause and is not permissible?

In the meantime, prayers in town meetings can be both a political and legal minefield. The elected officials who run the meetings will want to avoid creating animosity from majority religions by offering religious minorities prayer time at the podium, and at the same time need to prepare for legal defenses if those minorities are discriminated against. A clear ruling favoring separation of church and state would take these controversies out of these local communities.

2,000 years after they were spoken, there's still wisdom in these words.

"And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others. Truly I tell you, they have received their reward in full.  But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you.  Matthew 6:5-6 (NIV).

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