WASHINGTON — The Supreme Court on Monday narrowly upheld the centuries-old tradition of offering prayers at the opening of government meetings, even though the prayers are overwhelmingly Christian and citizens are encouraged to participate.
The 5-4 decision, supported by the Court’s conservative justices and opposed by liberals, draws heavily on the history of legislative prayer dating back to the framers of the Constitution.
Defending a practice used by the town of Greece, New York, the majority held that opening local government meetings with sectarian prayers did not violate the Establishment Clause as long as no religion was promoted or denigrated and that residents were not coerced.
The alternatives, the conservative justices said, would be worse: asking government officials and the courts to “act as overseers and censors of religious speech,” or declaring all such prayers unconstitutional.
“As a long-standing practice, legislative prayer has become part of our heritage and tradition, part of our expressive language, akin to the Pledge of Allegiance, the Inaugural Prayer, or the recitation of “God save the United States and this honorable court.” “at the opening of the hearings of this court,” wrote Justice Anthony Kennedy.
Justice Elena Kagan wrote the lead dissent for the Court’s liberal bloc, arguing that the intimate setting of local government meetings, the participation of average citizens and the dominance of Christian prayer-givers put the policy out of reach.
“When citizens of this country address their government, they do so solely as Americans, not as members of one religion or another,” Kagan said. “And that means that even in a partially legislative body, they should not face a government-sponsored cult that divides them along religious lines.”
The long-awaited ruling came seven years after two women – a Jew and an atheist – filed suit against the city in court, and six months after oral arguments in November.
SEVEN YEARS IN COURT
The legal battle began in 2007, after eight years of Christian prayers in the city of nearly 100,000 outside Rochester. Susan Galloway and Linda Stephens took the case to the Federal Court and won, arguing that his prayers – often laced with references to Jesus, Christ and the Holy Spirit – aligned the town with one religion.
Once the legal battle began, city officials made extensive efforts to recruit volunteer prayer leaders and added a Jewish layman, a Wiccan priestess and a member of the Baha’i faith to the mix.
Both women claimed that the prayers in Greece were unconstitutional because they pressured those present to participate. They noted that unlike federal and state government sessions, city council meetings are attended by residents who must show up for everything from business permits to zoning changes.
Although the Court had upheld the practice of legislative prayer in the past, most recently in a case involving the Nebraska Legislature in 1983, the case of City of Greece v. Galloway thus presented the judges with a new twist: a predominantly Christian clergy frequently delivering sectarian prayers before an audience that often included average citizens with business to conduct.
Ultimately, five justices said those facts did not make what Greece City Council did unconstitutional, while four others said they did.
“The First Amendment is not majority rule, and the government cannot seek to define permissible categories of religious speech,” Kennedy said. “Once it invites prayer into the public sphere, the government must allow the prayer to address his own God(s) according to his conscience.”
This is not the case, Kagan argued for the losing side. She said the city’s prayers differed from those addressed to federal and state lawmakers about to take on the people’s business. In Greece, she explained, sectarian prayers were delivered to “ordinary citizens” who might feel ostracized or vulnerable if they did not participate.
“No one can reasonably read the prayers of Greek town meetings as anything other than explicitly Christian – consistently and exclusively,” Kagan said. “The prayers betray no understanding that the American community today is, as it has long been, a rich mosaic of religious faiths.”
Instead of following existing policy, Kagan said the City Council should follow the lead of congressional chaplains in giving clergy guidance to avoid sectarian or divisive prayers.
But several justices doubted during oral arguments last year that a prayer could satisfy everyone, leaving the court with no choice but to reiterate its support for the legislative prayer or remove it from government meetings altogether — which which they clearly didn’t want to do.
Justice Samuel Alito pressed the point in another vote Monday, in which he called the liberals’ dissent “pretty stubborn.”
“Not only is there no historical support for the proposition that only generic prayer is permitted,” Alito said, “but as our country has become more diverse, composing a prayer that is acceptable to all members community who have religious beliefs has become increasingly difficult.”
THREE DECADES OF CONTROVERSY
The 30-year-old court precedent, Marsh v. Chambers, upheld the Nebraska Legislature’s funding of a chaplain who delivered daily prayers. Chief Justice Warren Burger then ruled that such prayers were “part of the fabric of our society.” The ruling only bans prayers that take sides by promoting or denigrating a particular religion.
From Marsh, advocates of greater separation between church and state have made modest progress. In 1984, Justice Sandra Day O’Connor’s “approval test” established that every government practice must be examined to determine whether it supports a religion. In 1989, the court ruled that a Christmas nativity display on a courthouse staircase went too far in endorsing Christianity and emphasized O’Connor’s “reasonable observer” test.
The current court agreed to review the case following a federal appeals court’s ruling against the city. Judge Guido Calabresi of the 2nd Circuit Court of Appeals said his actions “virtually guaranteed a Christian viewpoint” and featured a “constant drumbeat of often specifically sectarian Christian prayers.”
The case rested on these words of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” » This is called the establishment clause.
The Obama administration has come out forcefully in favor of the city — not least because both houses of Congress have opened with prayers since 1789. But the prayers said there these days are far less sectarian than those heard in churches, temples and synagogues.
Most state legislatures open their sessions with a prayer, and nearly half of them with guidelines. Many county legislatures open their meetings with a prayer, according to an informal survey by the National Association of Counties. There is no national data on prayer practices at city and village levels.
The Supreme Court cracked down on prayer in schools in the 1960s, ruling against readings from the Bible, the Lord’s Prayer or an official state prayer.
In Lemon vs. Kurtzman, a 1971 case involving religion in legislation, the High Court devised what became known as the “lemon test.” Government action, he says, must have a secular objective, cannot promote or hinder religion, and must avoid overly involving the government in religion.
And came Marshin which the court green-lighted a legislative prayer that neither advances nor detracts from any faith.
Kennedy said Monday’s decision is in that spirit.
“The inclusion of a brief ceremonial prayer as part of a broader exercise of civic recognition suggests that its purpose and effect is to recognize religious leaders and the institutions they represent, rather than to exclude or coerce non-believers,” he said.
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