Under the U.S. Supreme Court: Deciding how government prays

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer
Under the U.S. Supreme Court: Deciding how government prays
President Barack Obama delivers remarks during the National Prayer Breakfast in Washington on Feb. 3, 2011. Vice President Joe Biden, First Lady Michelle Obama and members of Congress were also on hand. -- UPI/Gary Fabiano/Pool | License Photo

WASHINGTON, Feb. 9 (UPI) -- Nothing is closer to the hearts of people in the United States than local politics and prayer, usually Christian prayer. The U.S. Supreme Court may be about to rule on how closely the two can be combined.

Across the country, local governments begin official meetings with prayer. If you want to speak up at those meetings, you first have to listen to some preaching, sometimes at length.


But what if you are an agnostic or atheist, just trying to get a stop sign installed in your suburban neighborhood to protect children crossing the street? What if you are Jewish or Muslim? What if you are Catholic, and the invocation is Protestant?

On the other hand, should the courts be telling local governments they can't use prayer, or telling them what kind of prayer they can use?

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Should local governments be denied divine help and guidance, in a form most easily understood by the majority of their local constituents?

Not easy questions to answer.

The six Catholics and three Jews on the U.S. Supreme Court should be ruling on the issue soon. They heard argument in the case, Town of Greece vs. Galloway, Nov. 6, and a decision should be ready to drop soon, like ripe fruit.

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They sit again in the courtroom Feb. 24.

It's tempting to prophesy the result as foreordained. The court is dominated by its 5-4 conservative majority. Justice Anthony Kennedy, a key vote, during argument questioned whether judges or officials should decide what prayers by local government are acceptable, saying that would "involve the state very heavily in the censorship and the approval and non-approval of prayer."

The case was brought by two women in the Town of Greece, N.Y., a Rochester suburb of 96,000.

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"Susan Galloway [51, a therapeutic recreation specialist] is Jewish and Linda Stephens [70, past president of the Greater Rochester Chapter of the National Organization for Women and vice president of the local chapter of Americans United for Separation of Church and State] is an atheist; both felt marginalized by the town's legislative-prayer practice," they told the Supreme Court in a brief.

"The Town Board in Greece, N.Y., opens its monthly meetings with clergy-led prayer," their brief said. "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.'"


It added: "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 [after the suit was filed]. Many members of the audience are required to attend the meetings; children also routinely attend to fulfill a high-school civics requirement."

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A federal appeals court eventually concluded the Constitution is violated when "the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them."

But the panel kept its ruling narrow.

"We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the establishment clause" of the First Amendment.

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So what about Marsh vs. Chambers, the 6-3 Supreme Court ruling in 1983 that said prayers at the beginning of sessions at the Nebraska Legislature, or any state legislature, are constitutional.

Noting Congress begins sessions with prayer, the Marsh majority said more than three decades 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.

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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's effects for years.

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Besides Scalia and Kennedy on the court, the town has some powerful allies.

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.

Other briefs supporting the town came from 85 members of the Republican-led U.S. House of Representatives, mostly from Red States, and by more than 30 mostly Republican senators -- including possible presidential candidates Sens. Marco Rubio, R-Fla., and Ted Cruz, R-Texas.

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Meanwhile, the high court has been flooded with friend-of-the-court briefs, almost all supporting the town, from people or entities with an interest in the case.

One of the most thought-provoking comes from the Southern Baptist Convention Ethics and Religious Liberty Commission in support of the town. The commission says it represents the "nation's largest Protestant denomination, with about 16 million members in over 45,000 local churches."


A section in the Southern Baptist statement of faith says, "God alone is Lord of the conscience. ... Church and state should be separate. ... A free church in a free state is the Christian ideal. ..."

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But the Southern Baptist brief argued, "An invocation given by an unpaid 'chaplain' at the opening of a meeting of a legislative or deliberative body is not an establishment of religion, because a non-government speaker is in a limited public forum."

And, "A limited public forum establishes freedom of speech, not affiliation with religious viewpoint."

The real heavyweight, of course, is the Obama administration, which filed a brief "for the United States" in support of the town.

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"Throughout its history, and dating back to the first session of the Continental Congress in 1774, the United States Congress has appointed chaplains to open each legislative day with a prayer," the brief said.

"When the first Congress met in 1789, among its first orders of business was to select chaplains for the House of Representatives and Senate. Today, both the House and Senate Rules require that each legislative day begin with a prayer from the House or Senate chaplain or from a guest. ...


"The United States participated as [a friend of the court] in Marsh vs. Chambers ... in which this [Supreme] Court upheld the Nebraska State Legislature's practice of employing a chaplain who opened every legislative session with prayer, and has participated as a party in numerous cases concerning the constitutionality of opening legislative prayers in the United States Senate and House of Representatives."

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In ruling against the town, the federal appeals court "erred in its application of Marsh. The court agreed with petitioner [the town] that petitioner's practice of providing for the offering of a prayer at the beginning of Town Board meetings has not been exploited to proselytize or to denigrate any faith; it also accepted the uncontested finding that petitioner did not intentionally favor any one faith over any other," the administration brief said.

Nevertheless, the appeals court "held that petitioner's practice violates the establishment clause [of the First Amendment] because it has almost always resulted in participation by Christian prayer-givers, many of whom have employed identifiably Christian words in their prayers. In the court of appeals' view, a 'reasonable observer' would therefore understand petitioner's prayer practice as an establishment of Christianity. That was error."

The administration argued under the principles of the 1983 ruling, "which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the ways identified in Marsh [as petitioner's practice concededly is not] does not amount to an unconstitutional establishment of religion merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references."


Besides, the brief said, "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."

University of Virginia law professor Douglas Laycock brings a different point of view to the table. Laycock argued for the challengers at the Supreme Court.

"We are not asking the court to say that local government meetings cannot have a prayer," Laycock said in comments posted on the University of Virginia Law School website before the Nov. 6 argument. "This is a case about what kind of prayer they can have and how it is presented."

Laycock is no anti-religious zealot.

He is known for arguing on behalf of churches before the Supreme Court, and wrote the brief for the Southern Baptist Convention Ethics and Religious Liberty Commission in support of a challenge to the Affordable Care Act's contraception mandate.

"Some of the [Town of Greece] prayers are non-sectarian prayers, asking for divine guidance for the board as it does its work," Laycock said. "But a large majority of these prayers are explicitly Christian -- and many of them are heavy-handedly Christian. They're talking about the saving grace of Jesus Christ on the cross and other elements of Christian theology."


He added: "There are many people who don't object to the prayer. But those who do object have to go through the motions of participating. Those who are strong-willed enough not to participate report being embarrassed and humiliated by the hostile reaction."

Town meeting prayer is equivalent to coercion, he argued. Non-participating citizens know that they will soon be asking the board for action on parks, cable TV or votes on business permits and zoning variances.

"The town's argument is really that they can do anything," Laycock said on the website. "There are no limits. It doesn't matter how sectarian the prayers are. And that adults [by definition] can't be coerced, so no matter how much pressure citizens experience, it's still OK."

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