Under the U.S. Supreme Court: Will court change church-state equation?

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer  |  Sept. 1, 2013 at 3:30 AM
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WASHINGTON, Sept. 1 (UPI) -- Will the narrow conservative majority in the U.S. Supreme Court make it easier for communities across the United States to open government meetings with prayer -- almost always Christian prayer?


A town board in upstate New York, a suburb of Rochester, has opened its meetings for years with a Christian prayer led by a Christian cleric. But a federal appeals court ruled the prayers unconstitutional, finding they endorse Christianity.

Now the Town of Greece is set to argue at the Supreme Court -- set for Nov. 6 -- that the prayers are constitutional, citing the high court's 1983 ruling in Marsh vs. Chambers. The 6-3 Marsh ruling said prayers at the beginning of sessions at the Nebraska Legislature, or any state legislature, are constitutional.

A number of powerful figures are supporting the town's case, including members of Congress and the Obama administration.

Noting Congress begins sessions with prayer, the Marsh majority said 30 years ago: "In light of ... history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the [First Amendment's] establishment clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

The establishment clause says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The restriction is extended to the states through the 14th Amendment.

In an analysis for SCOTUSblog.com, veteran high court reporter Lyle Denniston said the Town of Greece case "may well be crucial to future cases under the establishment clause, because lawyers for the town are urging the [Supreme] Court to rule that government-meeting prayers should only be forbidden if they actually coerce someone into believing the message. That would replace the 'endorsement' test that the [appellate court] applied. The coercion test would generally be harder to prove against prayers in government settings."

Writing in Slate magazine, Christopher C. Lund, an associate professor of law at Wayne State University Law School, said because the facts "are somewhat murky and the law murkier still, few people initially noticed the case. But last May, the Supreme Court agreed to decide it. And now suddenly everything is up for grabs."

The debate "is still a case about legislative prayer," Lund said. "But at least one side is using the appeal as a vehicle to have the court totally revamp its approach to the establishment clause. The court may just bite."

Writing for Justia.com, Marci A. Hamilton, a professor of law at Cardozo School of Law, said: "The facts are pretty stark here. A religious town supervisor decided that a moment of silence was not enough, and instead embroiled the town in likely litigation by recruiting chaplains to start Town Board meetings with sectarian prayers. Moreover, the vast majority of recruited chaplains over the years have shared the same faith as the supervisor. And no citizen or resident could attend the board meetings" to participate in government "without being subjected to the prayers."

In asking the Supreme Court to reverse the appeals court, the town told the justices: "In this case, the court of appeals held that the Town of Greece violated the establishment clause by allowing volunteer private citizens to open town board meetings with a prayer. Though the town had never regulated the content of the prayers, had permitted any citizen from any religious tradition to volunteer to be a prayer-giver, and did not discriminate in selecting prayer-givers, the court struck down the town's prayer practice, applying an 'endorsement' test derived from Lemon [vs. Kurtzman]."

The famous, or in some quarters infamous, three-pronged "Lemon test" articulated in the 1971 Lemon ruling says a government practice that affects religion is allowable under the establishment clause if it has "a secular legislative purpose," "neither advances nor inhibits religion" and does not "foster an excessive government entanglement with religion."

Some members of the Supreme Court, particularly Justice Antonin Scalia, have been trying to get rid of the Lemon test for years.

Arguments in the case may be a little hard for the lay person to follow. Basically, they involve what actually occurred in the Town of Greece, what federal appeals courts have said about legislative prayer and whether prayer at government meetings, including sessions of Congress, is genuinely in peril.

"The Town of Greece has a policy whereby any citizen of any faith [or of no faith] may volunteer to give the invocation at the beginning of Town Board meetings, and that policy has resulted in invocations reflective of the faith communities in the town -- including prayers with Christian, Jewish and Baha'i references," the town said in its petition to the high court for review. "When two town citizens challenged this practice under the establishment clause, the district court concluded -- based on Marsh -- that the practice was permissible."

The petition said: "Some prayers contained specific references to other faith traditions: the Jewish layperson referred to 'David, your [i.e., God's] servant,' the Baha'i prayer-giver offered the Baha'i greeting 'Allah-u-Abha,' and the Wiccan priestess referred to Athena and Apollo."

But the 2nd U.S. Circuit Court of Appeals, "relying on dictum," something outside the core of the opinion in the Supreme Court's 1989 decision in County of Allegheny vs. American Civil Liberties Union "applied an 'endorsement' test and concluded that the proportion of Christian prayers to non-Christian prayers could be viewed by an 'ordinary, reasonable observer' as affiliating the town with the Christian faith."

The town argued that across the nation, the U.S. courts of appeal "are hopelessly divided over whether legislative-prayer practices should be analyzed under Marsh's historical test or instead under an 'endorsement' test derived from County of Allegheny. ...

"Legislative bodies -- from Congress, to state legislatures, to municipal boards -- lack sufficient guidance as to which prayer practices are permissible, despite this [Supreme] Court's pronouncement nearly 30 years ago that legislative prayers are generally permissible and, indeed, have become 'part of the fabric of our society.'"

Eighteen states have filed a friend-of-the-court brief in support of the town's argument -- Indiana, joined by Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Kansas, Michigan, Mississippi, Montana, Nebraska, New Mexico, Oklahoma, South Carolina, Texas, Utah and Virginia.

Another brief supporting the town came from 49 members of the Republican-led U.S. House of Representatives.

"These elected representatives regard legislative prayer as important for policy-making bodies, both to solemnize official occasions and to seek God's blessing, wisdom and guidance in making consequential decisions," the congressional brief said. "Each member also represents municipalities, school districts and counties -- not unlike petitioner Town of Greece -- and part of a sovereign state, each of which is governed by a body that practices legislative prayer at the outset of its meetings and sessions. These legislative prayer practices are imperiled by the [appeal court's] decision, which is just the latest and most deeply flawed decision in a growing line of recent legislative prayer cases."

Yet another brief filed by more than 30 mostly Republican senators -- including possible presidential candidates Sens. Marco Rubio, R-Fla., and Ted Cruz, R-Texas -- also supports the town.

The Obama administration joined the fray on the town's side as well.

"Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this [Supreme] Court has consistently disapproved of government interference in dictating the substance of prayers," U.S. Solicitor General Donald B. Verrilli Jr. told the high court.

On the other side, the challengers to the town's prayer practice paint quite a different picture of the facts on the ground.

"The Town Board in Greece, N.Y., opens its monthly meetings with clergy-led prayer," the challengers told the Supreme Court. "With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers. Many of the prayer-givers have elaborated on Christian tenets and celebrated the birth and resurrection of Jesus Christ, one asked attendees to recite the Lord's Prayer in unison, and another criticized objectors to the prayer practice as an 'ignorant' minority. Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding 'Amen,' or making the sign of the cross. Members of the audience do the same.

"At the conclusion of the prayer, the town's supervisor typically thanks the prayer-giver for serving as the town's 'chaplain' of the month, though he did not bestow this title on the few non-Christians who delivered the prayer in 2008. Many members of the audience are required to attend the meetings. Children also routinely attend to fulfill a high-school civics requirement. The question presented by the [town's] petition is whether the [appeals court] correctly concluded, under Marsh vs. Chambers ... that the town board exploited its prayer opportunity to advance one faith to the exclusion of others."

Besides the town allegedly fudging the facts on its prayer policy, the appeals court decision that the town wants the Supreme Court "to review is not one that the Second Circuit actually issued," the challengers said.

According to the town, the "Second Circuit held that legislative prayer practices can be unconstitutional simply because the prayers (and prayer-givers) disproportionately use explicitly Christian references. ... What the Second Circuit in fact did was to review 'the totality of the circumstances' ... to conclude that the practice" advanced "a single religious sect."

"Unhappy with this outcome, [the town] argues that the differing results" in rulings by appeals courts across the country on "legislative-prayer cases flow from disparate legal standards that emanate from a 'perceived conflict' in this [Supreme] Court's decisions. ... But no circuit has recognized a conflict in this [Supreme] Court's jurisprudence, and none of the cases that [the town] cites applied a standard that conflicts with the Second Circuit's analysis. The differing outcomes in the circuits' decisions have stemmed from factual differences among the cases, not from the application of divergent legal tests."

The town's petition "contends that the circuits are divided over the legal standard governing legislative prayer, arguing that the 11th [U.S.] Circuit [Court of Appeals] 'has adhered to the Marsh test,' while the Second and Fourth Circuits have applied an endorsement test 'derived directly from Lemon vs. Kurtzman ... and its progeny," the challengers told the high court. "Not so. The Second Circuit stated unequivocally that the touchstone of our analysis must be Marsh," which did not employ the three-pronged test the Supreme Court had adopted 11 years earlier in Lemon.

"Thus, the Second Circuit did not ask whether the town's prayer practice had the primary purpose or effect of advancing religion" as in Lemon. "Rather, the court evaluated whether the prayer opportunity had been 'exploited to proselytize or advance any one, or to disparage any other, faith or belief'" as in Marsh. "The [appeals] court cited Lemon only to eschew its application."

The town "argues that the circuits' treatment of legislative prayer 'changed dramatically'" with an adverse ruling by the 4th U.S. Circuit Court of Appeals -- so much so "that the 'ubiquitous American tradition of legislative prayers' is now under threat. But in the nine years since [the Fourth Circuit ruling] legislative prayer has thrived: Prayers 'are still going strong today' in both houses of the U.S. Congress and in the legislatures of 49 of the 50 states."

Moreover, the challengers said: "The brief filed by some members of the U.S. House of Representatives likewise errs in suggesting that the Second Circuit's decision will jeopardize that institution's practice. While Christian clergy present a majority of the House's prayers, non-Christian guest chaplains routinely deliver prayers, and have done so consistently in the last several years. And the percentage of sectarian references is far lower than it is in the Town of Greece: approximately half [rather than as much as 90 percent] of the prayers in the 112th Congress contained Christian language."

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