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Will history prevail on prayer?: In Plain English (with audio links)

On Wednesday morning, in Town of Greece v. Galloway, the Justices heard oral arguments in a lawsuit brought by two residents who argue that the town council’s practice of beginning its meetings with a prayer violates the Constitution.   (I previously previewed the oral argument in Plain English.)  A court of appeals had ruled that although prayers are permissible, these suggested that the town was endorsing Christianity.  When the hearing was over, it looked like the prayers would survive.  If that happens, though, a win for the town may have less to do with the Justices’ strong convictions that the prayers are on firm constitutional ground than with their sense that a ruling allowing the prayers to continue would create fewer challenges for the courts than the alternatives.  Let’s talk about the oral argument in Plain English. 

First up on Wednesday was attorney Thomas Hungar, who argued on the town’s behalf in support of the prayers.  He quickly ran into a question from Justice Elena Kagan, who asked him whether the Constitution would allow an emphatically Christian prayer at the beginning of a Supreme Court sessionHungar responded that it would not. The difference, he explained, was that the town’s case involved exactly the same kind of prayer before a legislative session that the Supreme Court approved thirty years ago in a case called Marsh v. Chambers, which itself relied on a long history of prayer in legislatures (not courts) across the country.  That answer did not satisfy Kagan or Justice Ruth Bader Ginsburg, as both pushed Hungar to explain why the same prayer might be constitutional in Congress but not across the street at the Court; Ginsburg also asked whether the town can even rely on historical practice to justify the prayers when the town council also takes on administrative tasks – like zoning applications – and therefore isn’t just a legislative body.  And Chief Justice John Roberts asked Hungar to clarify whether the historical prayer practice could be extended to justify new practices in the future.

Some of the Justices also seemed unmoved by Hungar’s repeated assertions that the town’s prayer practice had more going for it than just history.    Justice Kennedy told Hungar that, although his argument had “some force to it,” that argument essentially boiled down to “we’ve always done it this way.  . . .  [I]t seems to me that your argument begins and ends there.”

As he had done the day before in Bond v. United States, the challenge to a Pennsylvania woman’s conviction on chemical weapons charges for attempting to poison a romantic rival, Justice Breyer seemed to be casting about for a middle ground that would resolve this case without requiring the Court to make broader rulings on the meaning of the Constitution.  He asked Hungar, for example, whether the case could be sorted out by the town agreeing to “mak[e] a good faith effort to try to include other[]” faiths.  But Hungar was unwilling to give on that point, telling Breyer that, “as a practical matter, that has already happened here.”

Arguing on behalf of the United States in favor of the town, Principal Deputy Solicitor General Ian Gershengorn also emphasized the long history of legislative prayer, but he then quickly moved on to describe what the United States regarded as an additional flaw in the lower court’s decision striking down the town’s prayer practice:  it would require courts to review individual prayers to determine whether they were too sectarian.  Justice Ginsburg questioned the premise of that argument, though, noting that under the government’s own test, which looks to whether the prayers either proselytized or denounced other religions, courts would have to do something similar anyway.  Gershengorn too would return to the history of legislative prayer, in response to comments by Justice Kagan asking him whether the kind of prayer at issue in this case is inconsistent with the general principle that Americans participate in government as Americans, rather than as members of a particular religion.

If history played a starring role in the first half-hour or so of the argument, theology took over the second half, when University of Virginia law professor Douglas Laycock (an expert on the intersection of law and religion) argued on behalf of Susan Galloway and Linda Stephens, the town residents who object to the prayers.  For Laycock, it was an easy case:  the town should have a policy that provides the clergy who offer the prayers with guidelines on how to avoid overly Christian prayers and, at the same time, prevent residents who attend the meetings from feeling coerced into participating.  But that led to a cascading series of questions from some of the Court’s more conservative Justices, who focused on what they saw as the many flaws in Laycock’s argument.

First, Justice Alito immediately challenged him to provide an example of a prayer that would be acceptable to a variety of faiths, from Christians to Wiccans and Bah’ai.  Laycock suggested that prayers “to the almighty” or “the creator” might do so, but that response prompted Alito to ask whether such prayers would pass muster with religions that believe in more than one godThe Chief Justice then raised yet another concern:  who determines whether the prayers are sufficiently sectarian to violate the Constitution, and should that person do so before or after the prayers take place?  When Laycock responded that the clergy would be provided with instructions to guide their prayers, Justice Kennedy then suggested (disapprovingly) that the result would be “the government . . . editing the content of prayers.”  And Justice Scalia added that Laycock’s proposed solution would create its own set of problems by prohibiting citizens who are religious from seeking spiritual guidance before the meetings.

Toward the end of the argument, Justice Kagan asked a question that seemed to capture the real issues before the Court, as well as the possible conundrum that the Court faced.  She suggested, and Laycock agreed, that the actual question was whether the Constitution allows prayers like the ones in this case, which were very important to most members of the community but to which some members of the community object.  But, she continued, when the Court gets involved in disputes over hot-button topics like prayer, “it seems to make the problem worse rather than better.”  And here, the Court’s misgivings about the residents’ argument apparently outweigh the Justices’ concerns about relying so heavily on history to justify the prayers.  So, as Kagan hinted, the Court could try to avoid making the problem worse by issuing a limited decision that simply allows prayers like the ones in this case based on its decision in Marsh and historical practice, leaving bigger constitutional questions for another day.

A decision in the case is expected by summer.  We’ll be sure to cover it in Plain English.

Recommended Citation: Amy Howe, Will history prevail on prayer?: In Plain English (with audio links), SCOTUSblog (Nov. 9, 2013, 12:27 PM),