November 3, 2013

Supreme Court revisits public prayer

Justices will take up a case involving prayers at meetings.

By Robert Bares
The Washington Post

(Continued from page 1)

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Tom Lynch delivers a Baha’i prayer before the start of a town board meeting in Greece, N.Y., on Aug. 20. The Supreme Court soon will take up the case of the Town of Greece v. Galloway, concerning use of public prayers before town meetings.


After the lawsuit was threatened, the town made more of an effort – that’s how the Baha’i representative and the Wiccan got involved – but all agree that the overwhelming number of prayers offered over the 10 years covered by the suit were offered by Christians, and most contained direct references to Christianity.

When the case reached the U.S. Court of Appeals for the 2nd Circuit, a unanimous panel of the court said it was not enough to view the town’s actions through the lens of Marsh.

Judge Guido Calabresi said the Supreme Court had ruled in a subsequent case involving a creche display that governments must be careful about practices “that have the effect of affiliating the government with any one specific faith or belief.”

Despite what may have been good intentions, Calabresi wrote, that’s what the town of Greece had done.

By not reaching out to a more diverse group of prayer-givers or making clear that the prayers did not represent the town’s beliefs, the judges found, “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.”

The town and the Obama administration argue that putting the government in a position of monitoring the content of prayers would create more constitutional problems.

But the brief for Galloway and Stephens, who are represented by Americans United for Separation of Church and State, said the court’s precedents require such prayers to be nonsectarian and that the town is asking for too much leeway.

It would “leave government officials and guest chaplains free to admonish and harangue citizens to participate in sectarian prayers – even those that promise eternal hellfire to religious minorities,” the brief for the women says.

The challengers also say another of the court’s tests – one identified with Justice Anthony Kennedy, often the deciding vote at the court – must come into play. That test asks whether or not a practice is coercive, requiring individuals to participate in a religious practice.

Town council meetings, they say, are different from sessions of Congress or a state legislature, where visitors are observers.

People often attend council meetings because they have to, they say, in order to apply for zoning variances or be sworn into jobs.

Because the town of Greece does not require chaplains to refrain from asking the audience to join in the prayers or make their invocations more inclusive, the challengers’ brief says, religious minorities are “pressed either to feign participation in act of worship that violates their own beliefs, or to publicly display their dissent.”


As with any Establishment Clause case, the controversy from Greece has attracted an outpouring of amicus briefs. They ask the court, on one side, to overturn Marsh or to be more explicit about what it means that prayers must be “nonsectarian.”

That has prompted the Rev. Robert Palmer, the chaplain in the 30-year-old Marsh case, to file a brief noting that his prayers were nondenominational – meaning they didn’t favor his Presbyterian faith over any other Christian religion – but not nonsectarian.

On the other side, there are briefs urging the court to do away with its tests and rules that restrict the role of religion in public life. But that would require an agreement among the justices that has eluded those who have come before.

Many experts, such as Garnett, think the court will be reluctant to go that far. If the justices rely on arguments based on history and tradition, such as those that prevailed in the Marsh case, they are likely to leave the state of the law relatively unchanged.

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