Supreme Court to Decide on Prayer in Public Meetings

Posted May 22, 2013 in Government Your Personal Rights by

Uncle Sam praying


The U.S. Supreme Court this week decided to take up a case that could change the rules for when prayer is allowed in public meetings, and even have broader implications for government prayer in general.

In Greece v. Galloway, the court will hear arguments next term on whether the Town Board of Greece, N.Y., should be permitted to open its public meetings with a prayer.

Two residents filed a lawsuit, arguing that the prayers are in effect an endorsement of Christianity. The town defended the practice, claiming that the invocations are not exclusively Christian and could be derived from any faith. However, a federal court balked, pointing out that most of the prayers were in fact Christian, which could be viewed as an official affiliation with the religion.

“Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed,” the opinion by the 2nd U.S. Circuit Court of Appeals reads, “and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”

That would be an unconstitutional violation of the First Amendment, the court ruled, a decision the Supreme Court will now uphold or reverse.


Establishment of Religion

In what is known as the Establishment Clause, the First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion.” However, what that means in practice is not so set in stone.

Christopher Lund

“The general rule is that the government cannot prefer one religion over another, or endorse religion in general,” says Christopher Lund, a professor at the Wayne State University Law School. “But there are exceptions.”

In the 1983 case Marsh v. Chambers, the high court gave a green light to Nebraska to pay a chaplain to conduct a prayer before legislative sessions, allowing that the practice was “deeply embedded in the history and tradition of this country.”

“There was no sign that First Congress meant to do away with legislative prayer when it chose to adopt the First Amendment,” Lunda explains. “Thus, since 1983, we’ve known that legislative prayer generally speaking is constitutional, even though it undoubtedly is an endorsement of religion.”

However, the Marsh decision left ambiguities in place as to what limits do attach to legislative prayer. “For example, Marsh suggests that overly denominational prayers—prayers that seem to affiliate the government with one particular faith—are still unconstitutional,” Lund says. “But Marsh is unclear on where exactly the line is, and lower courts have split on that. Unless something weird happens, Greece will answer the questions that Marsh left open.”


Invert the Rule and Exception

The court could limit its ruling to legislative prayer, or it could broaden it to encompass governmental prayer in general. “It could invert the rule and the exception, and turn the general rule that government cannot endorse religion into a much narrower rule that the government cannot endorse religion in the public schools and that the government can do what it likes outside of the public schools,” says Lund.

Attorney Eugene Volokh of the Volokh Conspiracy blog concurs, noting, “The Court may use the case as a means of reconsidering the ‘endorsement test,’ under which the Establishment Clause is read as barring government speech (or even government action) that a ‘reasonable observer’ would see as ‘endorsing or disapproving’ of religion (either a particular religion or religion generally),” he writes. “It’s very much in play in this case.”

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