Bloomberg News

Legislative Prayer Scrutinized by Top U.S. Court Justices

November 06, 2013

U.S. Supreme Court justices grappled with a challenge to a New York town’s practice of starting most board meetings with a Christian prayer, hearing arguments in a case that will shape the role religion can play in civic life.

The case is the high court’s first look at legislative prayer since 1983, when a majority said lawmakers could begin sessions with prayers, or at least non-sectarian ones.

The hour-long hearing today in Washington gave no clear indication of the outcome, instead revealing conflicting impulses among the justices most likely to control the decision.

Justice Anthony Kennedy, the potential swing vote, said the New York town’s main argument -- that legislative prayer is a centuries-old tradition -- “has some force to it.” At another point, however, he asked whether the court’s acceptance of the practice was “just a historical aberration,” without any underlying legal justification.

The vast majority of state legislative bodies open the day with some kind of prayer, as do both houses of Congress. At the Supreme Court itself, Marshal Pamela Talkin calls each session to order, including today’s hearing, with the words “God save the United States and this honorable court.”

The court will rule by July.

First Amendment

In the case before the court, two residents of the Rochester suburb of Greece are challenging the town’s practice as a violation of the First Amendment ban on government “establishment of religion.”

The women, Susan Galloway and Linda Stephens, say that over a four-year period, more than three-quarters of the prayers were explicitly Christian, containing references to Jesus and often seeking audience participation.

The town says it doesn’t shut out members of other faiths. After the two women complained, officials arranged for opening prayers to be delivered by a Jewish man, a Baha’i leader and a Wiccan priestess who invoked Apollo and Athena.

A New York-based federal appeals court said the town’s prayer practice “must be viewed as an endorsement” of Christianity, violating the Constitution.

Several justices indicated they viewed the Greece practice as coercive toward non-believers in the audience. Justice Elena Kagan began the questioning by reading an explicitly Christian prayer delivered by one of the town’s guest chaplains. She asked Greece’s lawyer whether the Supreme Court could begin sessions that way.

Tradition Invoked

The lawyer, Thomas Hungar, said he didn’t think such a practice would be constitutional, adding, “the tradition that we rely on involves legislative prayer.”

That response drew additional challenges from justices asking why prayer might be permissible for a legislative body, yet not for a judicial or administrative panel.

Justice Sonia Sotomayor later questioned an Obama administrative lawyer, Deputy Solicitor General Ian Gershengorn, who was arguing on the side of the town.

“If the chief justice got up at the beginning of this session and said, ‘All rise for a prayer,’ would you sit down?” she asked.

Gershengorn argued that since the nation’s founding, legislative prayers “have regularly invoked the deity and the language of the prayer-giver.”

Parsing Prayers

Several justices suggested they were reluctant to put public officials in the position of trying to ensure that prayers were non-sectarian. Kennedy bristled when Douglas Laycock, the women’s lawyer, said government officials could give instructions to guest clergy members.

“So in other words the government is now editing the content of prayers?” Kennedy said.

“Editing the content of government-sponsored prayers,” Laycock responded. “Of course these clergy can pray any way they want on their own time with their own audience. But this is an official government event.”

Laycock said 37 state legislative bodies and the U.S. House of Representatives already issue guidelines to prayer-givers.

Justice Samuel Alito said the religious diversity in modern-day America would make it hard to find prayers that didn’t exclude one group.

“There are a lot of Muslims, there are a lot of Hindus, there are Buddhists, there are Baha’is, there are all sorts of other adherents to all sorts of other religions, and they all should be treated equally,” Alito said. “I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups.”

‘Religious Interest’

Justice Antonin Scalia said Laycock’s argument ignored the “serious religious interest on the other side of this thing” - - namely, the rights of the legislators, who Scalia said “are there as citizens.”

“It seems to me an imposition upon them to stifle the manner in which they invoke their deity,” Scalia said.

The Supreme Court has taken up religion cases only sparingly since John Roberts became chief justice in 2005. In perhaps the biggest ruling, a 5-4 decision in 2010, it revived a federal law designed to protect a Christian cross erected as a war memorial in a national preserve.

Near the end of today’s session, Kagan suggested there was good reason for the court to limit its role.

“It’s hard because the court lays down these rules and everybody thinks that the court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways,” she said.

“Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the court gets involved in things like this, it seems to make the problem worse rather than better.”

The case is Town of Greece v. Galloway, 12-696.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net


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