Legislative prayer returns to the Court: In Plain English
on Nov 6, 2013 at 5:30 am
Thirty years ago, in Marsh v. Chambers, the Supreme Court held that the Nebraska legislature could begin its legislative sessions with prayers led by a chaplain who was employed by the legislature. But the Court has never settled when legislative prayers go too far and cross the line separating church and state. Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents. Today, in Town of Greece v. Galloway, the Court will hear oral arguments about whether the town’s prayers are constitutional, but its decision could have a wider impact on the law governing the intersection of church and state. Let’s talk about the case in Plain English.
For the first eight years after the town started the prayers, all of the people who delivered them were Christian. The case before the Court today was filed in 2007 by Susan Galloway, a town resident who is Jewish, and Linda Stephens, who is an atheist. They said that the repeated use of Christian prayers made them uncomfortable; in 2008, there were four non-Christian prayers. To give you a sense of the content of the prayers, one prayer this summer was offered by a Christian minister, who thanked God for “the many freedoms that we enjoy” in this country and also for “the freedom that comes from knowing your son, Jesus.”
A lower court held that the town’s prayer practice violated the Constitution because, taken as a whole, it suggested that the government was endorsing Christianity. That court emphasized that most of the prayers were “uniquely Christian” – referring, for example, to “Jesus,” “Your Son,” or “the Holy Spirit.”
And it wasn’t enough for the lower court that clergy from other religions had sometimes offered the prayer; it reasoned that the town had almost always only invited clergy from within the town itself, without making any real effort to let other religions know that they could participate, and it hadn’t reached out to recruit members of other faiths. Moreover, the clergy who led the prayers gave the impression that they were speaking on behalf of the town, and often asked the audience to participate using phrases like “let us pray.” The town of Greece filed a petition for certiorari asking the Supreme Court to review the case, which the Court granted in May of this year.
At the Supreme Court, the town characterizes the case as an easy one that the Court can resolve based just on Marsh v. Chambers, which allows legislative prayers as long as you are not trying to proselytize or denounce another religion, and you don’t discriminate in whom you choose to deliver the prayer. Neither of those scenarios, it argues, is present here. And under Marsh, the town continued, the lower court should not have considered whether the prayers would suggest that the town was endorsing Christianity. In the town’s view, reversing the lower court’s decision would also be most consistent with what the First Congress (which had its own chaplain) would have understood the Constitution to allow.
The federal government filed a “friend of the court” brief that mostly echoes the themes in the town’s brief. Like the town, it reminds the Court that Congress has long opened its sessions with a prayer, and the extensive history of legislative prayer was an important part of the rationale for the Court’s decision in Marsh v. Chambers. The government also agrees with the town that it can have religious prayers at government meetings as long as it is not trying to proselytize or denounce another religion.
Galloway and Stephens argue that the prayers are unconstitutional for two reasons. First, they effectively coerce the town’s residents to participate in the prayers. If you want to participate in local government – for example, when you are looking for a zoning change or trying to get a business permit – you will attend the town council meeting and feel obligated to join in the prayer. This is different from the prayers that the Court approved in Marsh, they reason, because there wasn’t any sign of coercion in that case: Nebraska citizens were just there to watch the proceedings, and legislators “were free to come and go with little comment.” Second, the prayers are “acceptable only to Christians.”
The Court overwhelmingly grants review to reverse, so the odds are against a ruling that would uphold the lower court’s decision. But if the Court does reverse, the interesting question will be the grounds on which it does so. Would it simply hold that this particular town’s prayers are close enough to the ones in Marsh v. Chambers to pass muster, or will it take a bigger step – for example, by making clear that challenges to legislative prayer are largely off limits to constitutional challenges? We will have a better idea after today’s oral argument, which we will be back to cover in Plain English.