By Ruth Moon. Published by Christianity Today on 5 May 2014.
A divided U.S. Supreme Court ruled today that explicitly Christian prayers at government meetings do not violate the establishment clause of the First Amendment. At least in the 94,000-person town of Greece, New York, which may continue to open its council meetings with sectarian prayer after the court's 5-4 reversal of an appeals court's ban on the tradition.
Requiring prayers to be nonsectarian would require courts to "act as supervisors and censors of religious speech," wrote Justice Anthony Kennedy for the majority opinion, "thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact."
Two residents of Greece had sued the town board for its practice of beginning meetings with prayer, saying the practice violated the establishment clause (full summary below). The Second Circuit Appeals Court agreed, saying that even though the town board allowed members of any faith to pray, functionally, a majority of the prayers contained "uniquely Christian language."
But the Supreme Court reversal highlights the difficulty of determining where the line is between sectarian and nonsectarian prayer. Phrases like "Lord of Lords," Kennedy points out, might seem ecumenical to many Christians but exclusive to practitioners of other religions. "The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech," Kennedy said in the opinion. "Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian."
Such prayers might offend people, Kennedy acknowledged. "Offense, however, does not equate to coercion," he said. "Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum."
The court handed down several opinions: Kennedy wrote the court's opinion, which Chief Justice John Roberts and Samuel Alito joined. Antonin Scalia and Clarence Thomas joined in part and filed a partially concurring opinion; Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor joined a dissenting opinion by Elena Kagan.
Kagan in the dissenting opinion said the Greece prayers were "more sectarian and less inclusive" than any allowed in the precedent case, Marsh v. Chambers. That 1983 case upheld the state of Nebraska's tradition of opening legislative sessions with a chaplain's prayer.
"When citizens of all faiths come to speak to each other and their elected representatives in a legislative session, the government must take especial care to ensure that the prayers they hear will seek to include, rather than serve to divide," Kagan said.
The Greece case, the first legislative prayer case taken by the Supreme Court since 1983, has been closely watched. CT, which previously examined whether Christians must pray in Jesus' name at public forums, noted how the Second Circuit ruled that the town didn't try hard enough to find non-Christians to give the invocations—even if that required recruiting beyond the town's borders. But many expected the Supreme Court to reverse the ruling, and wondered how narrow or broad the reversal would be.
Most of Kennedy's opinion "is devoted to refuting respondents' argument that the Establishment Clause requires legislative invocations to be non-sectarian," explains Religion Clause's Howard Friedman in his analysis, while most of Kagan's dissent "emphasiz[es] the differences between city council meetings and state legislatures" on religious equality.
"The Supreme Court has again affirmed that Americans are free to pray," said David Cortman, senior counsel for Alliance Defending Freedom (ADF), which represented the town of Greece before the Supreme Court. "Opening public meetings with prayer is a cherished freedom that the authors of the Constitution themselves practiced. Speech censors should have no power to silence volunteers who pray for their communities just as the Founders did."
ADF believes the ruling has ramifications for similar cases in other courts, and "will seek to resolve those cases in light of the decision."
"Today's Supreme Court decision is a great victory for religious liberty," said Eric Rassbach, deputy general counsel of the Becket Fund for Religious Liberty, which filed an amicus brief in the case. "Prayers like these have been taking place in our nation's legislatures for over 200 years. They showcase our nation's religious diversity, highlight the fact that religion is a fundamental aspect of human culture, and reinforce the founding idea that our rights come from the Creator—not the legislature."
The decision highlights U.S. freedom to enjoy religious liberty, said Russell Moore, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, which also filed an amicus brief in the case. "I am very thankful the Court did the right thing," he said. "Prayer at the beginning of a meeting is a signal that we aren't ultimately just Americans. We are citizens of the State, yes, but the State isn't ultimate. There is some higher allegiance than simply political process."
Here is the Supreme Court's summary of Greece v. Galloway:
Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God." The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town's congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be non-sectarian. The Second Circuit reversed, holding that some aspects of the prayer pro- gram, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity.
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