Demonstrators hold signs reading "Keep your theocracy off my democracy" in front of the Supreme Court on Wednesday (Nov. 6) during oral arguments of Greece v. Galloway. RNS photo by Katherine Burgess

Demonstrators hold signs reading “Keep your theocracy off my democracy” in front of the Supreme Court on Wednesday (Nov. 6) during oral arguments of Greece v. Galloway. RNS photo by Katherine Burgess


This image is available for Web and print publication. For questions, contact Sally Morrow.

WASHINGTON (RNS) The Supreme Court struggled Wednesday (Nov. 6) with a case that asks whether government bodies can open with prayers that some people find overly religious and excluding.

From their lines of questioning, it’s unclear whether the court is ready to write new rules on what sort of prayer falls outside constitutional bounds. And more than one of the justices noted that just before they took their seats, a court officer declared: “God save the United States and this honorable court.”

Few court watchers believe the justices will rule all civic prayers unconstitutional — the nation has a long history of convening legislative bodies with such language.

Rather, the question raised by Town of Greece v. Galloway is how sectarian these prayers can get.

Justice Elena Kagan brought the issue into focus by asking what should happen if the court had opened with a different religious reference, one offered by a minister called up by the chief justice who asked everyone to bow their heads and said:

“We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from his resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side.”

Many of the prayers offered at the opening of town council meetings in Greece, N.Y., outside Rochester, have been similarly worded. For eight years, they were delivered only by Christian clergy, who sometimes asked attendees to stand and bow their heads, and frequently invoked Jesus and the Holy Spirit.

Susan Galloway, a resident of the town of Greece, New York, who filed a lawsuit against the town, speaks to the media after oral arguments at the Supreme Court in Washington, D.C. on Wednesday (Nov. 6). RNS photo by Katherine Burgess

Susan Galloway, a resident of Greece, N.Y., who filed a lawsuit against the town, speaks to the media after oral arguments at the Supreme Court in Washington, D.C., on Wednesday (Nov. 6). RNS photo by Katherine Burgess


This image is available for Web and print publication. For questions, contact Sally Morrow.

Two town residents — Susan Galloway, who is Jewish, and Linda Stephens, an atheist — sued over the prayers and lost in federal court in 2011, arguing that the town had violated the Constitution’s Establishment Clause, which prohibits government-sponsored religion.

But they won in 2012 at the 2nd U.S. Circuit Court of Appeals, which ruled that the town’s approach to public prayer amounted to an endorsement of Christianity.

When the Supreme Court took the case, First Amendment experts hoped the justices would help clean up an especially messy area of law. Courts across the country have come up with rulings on so-called legislative prayer that are at odds with each other, and apply different tests to determine what passes constitutional muster.

At the Supreme Court on Wednesday, the lawyer for the town, Thomas G. Hungar, argued that the 2nd Circuit erred in using an endorsement test to decide whether Greece officials had violated the First Amendment.

“American are not bigots, and we can stand to hear a prayer delivered in a legislative forum by someone whose views we do not agree with,” said Hungar. “That is the tradition of this country and that is why it doesn’t violate the Establishment Clause.”

Justice Antonin Scalia, a defender of the presence of religion in public life, also made the case for a standard that allows people to pray before they embark upon the business of government.

“These people perhaps invoke the deity at meals,” Scalia said. “They should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances?”

Thomas G. Hungar, who argued for the town of Greece, New York, speaks to the media after oral arguments at the Supreme Court in Washington, D.C. on Wednesday (Nov. 6). RNS photo by Katherine Burgess

Thomas G. Hungar, who argued for the town of Greece, N.Y., speaks to the media after oral arguments at the Supreme Court in Washington, D.C., on Wednesday (Nov. 6). RNS photo by Katherine Burgess


This image is available for Web and print publication. For questions, contact Sally Morrow.

The United States in this case, represented by Deputy Solicitor General Ian H. Gershengorn, took the town’s side, arguing that it’s not government’s job to parse the language of prayer and that the nation has a long history of legislative prayer.

Douglas Laycock, representing the women who filed suit against the town, proposed a different approach to such prayer. Government should ask clergy to stay away from themes on which believers disagree, refrain from asking for audience participation and separate the prayer from the part of the meeting where the legislative body makes decisions or enacts law.

“We’re saying you cannot have sectarian prayer,” Laycock said.

His proposal did not seem to please Justice Anthony Kennedy, known as the court’s swing vote, who expressed discomfort with any solution that assumed the government would or should have a say in the content of an invocation.

It “involves the state very heavily in the censorship, and the approval or disapproval of prayers,” Kennedy said.

Other justices, known to be sympathetic to arguments that would allow people to pray as they wish, also took Laycock to task.

Demonstrators hold signs that read "Keep your theocracy off my democracy" and "This is not a church" in front of the Supreme Court on Wednesday (Nov. 6) during oral arguments of Greece v. Galloway. RNS photo by Katherine Burgess

Demonstrators hold signs that read “Keep your theocracy off my democracy” and “This is not a church” in front of the Supreme Court on Wednesday (Nov. 6) during oral arguments of Greece v. Galloway. RNS photo by Katherine Burgess


This image is available for Web and print publication. For questions, contact Sally Morrow.

“Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists,” Justice Samuel Alito asked Laycock. “Hindus. Give me an example of a prayer. Wiccans, Baha’i.”

“And atheists,” added Chief Justice John Roberts.

“And atheists,” echoed Scalia. “Throw in the atheists too.”

Laycock said there were many such prayers acceptable to people of different faiths, and many examples even from Greece town council meetings.

As for atheists, Laycock continued, legal precedent implies that “atheists cannot get full relief in this context.”

A decision in the case is expected by the end of June.

KRE/MG END MARKOE

 

21 Comments

  1. My bet is that they will refuse to rule like they did for gay marriage.
    but that aside…prayer is a barbarically strange concept why the hell is this fight even happening? It is 2013 for Pete’s sake. Do people even still go to church?

    • The DOMA case was specifically brought before the court to avoid the larger issues. It was limited in scope by its plaintiffs in order to assure a more favorable outcome.

      You are right. SCOTUS as of late is notoriously gunshy about Establishment Clause cases and usually finds a technical reason to dismiss them so they don’t have to make a ruling on the subject.

      • Indeed, Larry. What liberals want to do is abolish religion from the public square, and they dislike the “free exercise” phrase
        I’ll also add: Establishment of religion” is a phrase relating to the abstract concept of religion in general. It is not possible to “establish religion”; it is only possible to establish a specific religion. The Founders did not want a “Church of America” that would in any way mimic the Church of England or any of the other established state religions found in Europe.
        SCOTUS is gunshy because it is a divided court, and the liberals on that court know full well that their own understanding of the establishment clause cannot be justified by the words of the Document nor by the context in which they were written.
        Did you know that even in Jefferson’s time church services were conducted in the Capitol and in other federal buildings? There was no uproar about this because everyone knew that the government itself did not have a hand in any of it other than providing the space for worship services.
        Care to explain how this might constitute an “establishment” of religion? Should federal buildings be used today for such purposes? There’s no reason for it, not with plenty of other places available.

        • So what you are saying is that you do not like religious freedom unless it gives you the right to excuse any action under the banner of “God’s will”. Religious prayer at government meetings by government officials is not free exercise. Its pure endorsement of religion by government.

          Attacking the Establishment Clause and elevating Free Exercise tells me that you do not respect any religious belief but your own and you have no problem giving such beliefs the power of law.

          Your attempt to weaselword the Establishment Clause to the point of irrelevance is hardly an honest or new point people make when they are making theocratic brownie points. Government establishes religion when it shows favoritism to one faith in a public fashion. You would like Christians to be considered above all others by government, but that is now what the 1st Amendment calls for.

          The Founders were deeply skeptical of religious trappings in government settings because such things are always a precursor to the sectarian discrimination which was so common in Europe. The discrimination many came to America to avoid.

          Secularism in government has its roots in Christianity. With Anabaptist sects setting up the colonies of PA and RI as sanctuary from religious persecution (which was rampant in the other colonies). They actively kept religion out of government in order to protect the welfare of all faiths. [The concept of Separation of Church and State predates our Constitution by over a century]

          “Did you know …?
          Did you know you are quoting David Barton’s oft-repeated misrepresentations and fictions rather than making a factually supported argument? Jefferson had little respect for public displays of piety in general and was skeptical of Christian dogma. Theocrats have made lying about history into a big business and ingratiated themselves among ignorant and lazy conservatives.

          Try reading about Roger Williams and William Penn. The people whose works are most responsible for the formation of our 1st Amendment religious freedom.

          • If any municipality chooses to open public meetings with a prayer the person offering the prayer should be chosen from the various faith communities represented in the town or municipality; though this may not be appreciated by the Christian majority, a little humility may be just what is needed in this instance.

  2. No need for all this wrestling. The purpose of the original writers was perfectly clear and perfectly explained in their other writings. The FEDERAL government is not supposed to do ANYTHING about religion. If a state or city wants to have an Established Anglican Church, fine. If a state or city wants to have an Established Wiccan Coven, fine. If a state or city wants to have total freedom, fine. The FEDERAL government simply skips the whole question. That’s all.

    The Supremes should always tell the lower-level federal courts to butt out.

    • Polistra, it is safe to say that what liberals really want is the complete abolition of the First Amendment. It does not comport with their notion of the all-powerful secular state. It may also be true that the liberals on SCOTUS, Kennedy included, don’t want to push their luck on this matter for fear of stirring up a major crisis within the country, one that just might result in the liberals’ losing more than just a short-lived victory of a bad decision at the bench.

      Poke the people often enough in the wrong spot–well, that’s what revolutions are made of, including revolutions at the ballot boxes. We’ve not had a real voters’ revolution in quite some time, and it may be that we’ll get one as a result of the mess Washington has given us these days because of its willful participation in what really is unconstitutional behavior.

    • That has to be one of the most plug ignorant arguments made on the subject!

      It is a perfect reason why “Founder Intent” is such an intellectually dishonest phony basis for argument.

      You seemed to forget of a little incident from 1861-65 which forever changed how the Federal government views states rights.

      We have a little something called the 14th Amendment. Equal protection under the law. Meaning all of the states must follow the guidelines of the Bill of Rights and the Federal government is the final arbiter of civil liberties issues.

      • Larry, I don’t know about you, but I’ve read quite a bit of the Federalist Papers and other letters, notes, etc. written contemporaneously by these same early fathers of the country.
        The nature of the dispute is not about the federal government insuring that the Constituion is observed in all the states, it is about judicial interpretation of that same Constitution. Nobody is arguing about the issue of slavery, at least not once the Constitution was amended to outlaw it, at which point it is the President’s duty to enforce it.

        The Founders knew full well that the issue of slavery could prevent the establishment of a United States, which is why they wrote what they wrote. They also knew that, sooner or later, the slavery issue would have to be addressed. If you read the Federalist, you’ll be aprised of this.

        Perhaps you have a different take on the NATURE of the actual dispute that has the country polarized. If so, I’d like to learn of it.

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