Law
3:01 pm
Wed November 6, 2013

Supreme Court Examines Anew Prayer At Government Functions

Originally published on Tue November 12, 2013 2:06 pm

The U.S. Supreme Court delved into a subject Wednesday that has bedeviled it for decades: how to reconcile a tradition of public prayers with the Constitution's ban on establishment of religion. At issue were almost exclusively Christian prayers that took place at town board meetings in Greece, N.Y.

The justices have struggled for decades with questions involving religious expressions that are connected to government. On the current court, conservatives have been willing to allow greater accommodation between government and religion. But the justices are closely divided, with Justice Anthony Kennedy often the decisive fifth vote.

For purposes of Wednesday's case, the critical precedent is a 1983 decision that upheld nonproselytizing prayers in state legislatures.

Generally legislatures have been deemed different from courts or executive agencies. But even at the Supreme Court there is a daily invocation of God's name. The court's marshal opens each public session, intoning, "God save the United States and this honorable court."

But what about explicitly sectarian prayers at local government meetings? Wednesday's case, presenting that issue, involved two citizens who filed suit challenging the almost exclusively Christian prayers in the town of Greece.

Until 1999, the town opened its board meetings with a moment of silence. But when a new supervisor was elected, he instituted prayers from a rotating list of clergymen. For a decade, until the lawsuit, all of the clergymen and prayers were Christian.

One representative prayer was led by a Catholic priest, who opened the meeting with these words: "We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death. Through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the lord Jesus. You who will raise us, in our turn, and put us by his side."

Justice Elena Kagan opened Wednesday's Supreme Court argument by reading that prayer to the lawyer representing the town, Thomas Hungar. Suppose, she asked, that at the beginning of this session of the court, "the chief justice had called up a minister to the front of the courtroom," and the minister "had asked everyone to stand and bow their heads in prayer," and then he gave this same prayer that the priest gave in Greece. "Would that be permissible?"

"I don't think so," replied Hungar.

Kennedy wanted to know, "Why not?"

Hungar contended that there is a historical difference between prayer in the legislature, which dates back to the first Congress, and prayer in the courts, which has no similar history.

So, "there's no rational explanation? It's just a historical aberration?" asked Kennedy.

Chief Justice John Roberts chimed in, noting that "history doesn't make it clear that a particular practice is OK going on in the future." We may not be willing to go back and take the cross out of every city seal that's been there since 1800, he said, but that "doesn't mean that it would be OK to adopt a seal today that would have a cross in it."

The justices then focused on what sorts of government meetings could constitutionally permit prayers. If we allowed a prayer at a utility-rate-making board meeting, Kennedy offered, "I don't think the public would understand that."

Supporting the town of Greece was the Obama administration and Deputy Solicitor General Ian Gershengorn. He reminded the justices that in their previous rulings, they had repeatedly barred any "parsing" of prayers.

Justice Sonia Sotomayor, however, pressed Gershengorn, noting that the court has also specifically barred prayers that proselytize, or prayers that damn other religions. "Unless you parse the prayers," she asked, how can you "determine whether there's been proselytizing or damnation?"

"What troubles me about this case," offered Kagan, is that here is a citizen going to local government, "the most responsive institution of government that exists." But instead of relating to the government simply as an American citizen, she is forced to identify based on her religious beliefs. Beliefs that may be different from the majority of people in the room.

Representing the citizens challenging the prayer practice in Greece, University of Virginia law professor Douglas Laycock took quite a pounding, particularly from the court's conservatives.

Said Justice Samuel Alito: "You are really saying you can never have prayer at a town meeting." No, replied Laycock, "We're saying you cannot have sectarian prayer."

"All right," said Alito. "Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus." And, chimed in Roberts, "atheists."

Laycock acknowledged that, under the court's precedents, atheists would not be covered by a nonsectarian prayer. Nor would "devil worshippers," a hypothetical posed by Justice Antonin Scalia.

"Who is going to make this determination?" asked Roberts. Does an officer of the town board have to review the prayers in advance?

No, replied Laycock. "Principally the clergy make this determination." We have a "200-year tradition of this kind of civic prayer," and "the clergy know how to do it." But, he added, most government institutions that want to have prayers provide some guidelines, as 37 state legislative bodies and the U.S. House of Representatives currently do.

"In other words," Kennedy added acidly, "the government is now editing the content of the prayers."

The clergy "can pray any way they want on their own time with their own audience", replied Laycock. "But this is an official government event."

Roberts asked what exactly is "coercive in this environment?" Was it "having to sit and listen to the prayer?"

People are asked to stand or bow their heads, replied Laycock, meaning that nonparticipants are "immediately visible."

"And this is coercion?" Scalia asked incredulously.

Yes, Laycock said. "It is impossible not to participate without attracting attention to yourself, and moments later you stand up to ask for" action from the board, whether it is a new policy or a zoning variance.

Justice Ruth Bader Ginsburg then asked what "would be necessary to bring this practice within the constitutional boundary."

"The town needs a policy," Laycock replied. Clergy should "stay away from points on which believers are known to disagree." Most important, "don't ask people to physically participate."

"The coercion can't be entirely eliminated," Laycock conceded, "but the gratuitous coercion" could be.

Justice Stephen Breyer said that his interpretation of constitutional history is that "a major purpose of the religion clauses is to allow people in this country of different religions, including those of no religion, to live harmoniously together."

Laycock agreed, noting that at the time the Constitution was written, the country was almost entirely Protestant. That is one of the reasons that having a prayer at the opening of legislative sessions in the first Congress was relatively uncontroversial.

Alito interjected that given the great religious diversity in the country today, he just didn't "see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups."

Laycock conceded that "we cannot treat everybody, literally everybody, equally without eliminating prayer altogether." But we can sweep in the "great majority of the people," with prayers to "the almighty, the governor of the universe, the creator of the world."

Kennedy: So your position is that town councils like Greece can have prayers "if they are nonprovocative, modest, decent, quiet, nonproselytizing"?

"I wouldn't use all those adjectives, but yes," replied Laycock. "And we don't think that's difficult to do."

Addressing Laycock, Sotomayor said, you hear "the resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian."

Laycock acknowledged that skepticism. But, he added, "If you really believe government can't draw lines, then your alternatives are either to prohibit all prayer entirely or permit absolutely anything." Including, Laycock said, a prayer asking for "a show of hands" as to how many of those present are believers.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

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And I'm Melissa Block.

The Supreme Court delved into a subject today that has bedeviled it for ages, how to reconcile a tradition of public prayers with this clause in the Constitution's First Amendment: Congress shall make no law respecting an establishment of religion. At issue today were almost exclusively Christian prayers that took place at town board meetings in upstate New York. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: The court has struggled for decades with questions involving religious expressions that are connected to the government. On the current court, conservatives have been willing to allow greater accommodation between government and religion, but the justices are closely divided, with Justice Anthony Kennedy often the decisive fifth vote.

For purposes of today's case, the critical precedent is a 1983 decision that upheld non-proselytizing prayer at state legislatures. Indeed, even at the high court itself, there's a daily invocation of God's name.

UNIDENTIFIED WOMAN: God save the United States and this honorable court.

(SOUNDBITE OF GAVEL)

TOTENBERG: The court merely refers to God, but what about explicitly sectarian prayers at local government meetings? That was the issue in today's case. It involved two citizens who filed suit challenging the almost exclusively Christian prayers in the town of Greece, New York. Until 1999, the town opened its board meetings with a moment of silence. But when a new supervisor was elected, he instituted prayers from a rotating list of clergymen, a list that, for 10 years, until this lawsuit, was all Christian and featured prayers like this one.

UNIDENTIFIED MAN: We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality and confidence from his resurrection at Easter. Jesus Christ, who took away the sins of the world...

TOTENBERG: Justice Elena Kagan opened today's argument by reading that prayer to the lawyer representing the town, Thomas Hungar. Suppose, she asked, that at the beginning of this session of court, the chief justice had invited a minister to the front of the courtroom and the minister had asked everyone to stand and bow their heads and then given this same prayer. Would that be permissible?

I don't think so, replied Hungar. Justice Kennedy: Why not? Hungar contended there's a historical difference between prayer in the legislature, which dates back to the first Congress, and prayer in the courts, which has no similar history. Justice Kennedy: So there's no rational explanation? It's just a historical aberration?

Chief Justice Roberts chimed in noting that history doesn't make it clear that a particular practice is OK going on into the future. We may not be willing to go back and take the cross out of every city seal that's been there since 1800, he said, but that doesn't mean it would be OK to adopt a seal today that would have a cross in it.

The Justices then focused on what sorts of government meetings could constitutionally permit prayers. Justice Kennedy: If we had a prayer at a utility rate-making board, I don't think the public would understand that. Supporting the town of Greece today was the Obama administration and its deputy solicitor general, Ian Gershengorn. He reminded the justices that in their previous rulings, they had repeatedly barred any parsing of prayers. Justice Sotomayor, however, pressed Gershengorn, noting that the court has also specifically barred prayers that proselytize or damn other religions.

Unless you parse the prayer, she asks, how can you determine whether there's any proselytizing or damnation? Justice Kagan: What troubles me about this case is that here, a citizen is going to a local community board, the most responsive institution of government that exists, and instead of relating to the government as an American, she's forced to identify based on her religious beliefs, which may be different from the majority of people in the room.

Representing the citizens challenging the prayer practice in Greece, lawyer Douglas Laycock took quite a pounding, particularly from the court's conservatives. Justice Alito: You're really saying you can never have a prayer at a town meeting? Answer: That's not what we're saying. We're saying you cannot have sectarian prayer. Justice Alito: All right. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus - and, chimed in Chief Justice Roberts, atheists. Lawyer Laycock acknowledged that under the court's precedents, atheists would not be covered by a non-sectarian prayer, nor would devil worshippers. But he said that about a third of the prayers offered at the Greece board meeting were, in fact, non-sectarian.

Chief justice Roberts: Who's going to make this determination? Does an officer of the town council have to review the prayers in advance? No, replied Laycock. Principally, the clergy themselves make these determinations. There is a 200-year tradition of this kind of civic prayer, he said, and the clergy know how to do it. But, he added, the town here should have provided some guidelines, as 37 state legislative bodies currently do, as well as the U.S. House of Representatives.

Justice Kennedy, acidly: In other words, the government is now editing the content of prayers. The clergy can pray any way they want to on their own time and to their own audience, replied Laycock, but this is an official government event.

Chief Justice Roberts: What exactly is coercive in this environment? Having to sit and listen to a prayer? Answer: They're asked to stand or bow their heads, meaning that non-participants are immediately visible.

Justice Scalia, incredulous: And this is coercion? Answer: It's impossible not to participate without attracting attention to yourself. And moments later, you're asking for some action from the board, whether it is a new policy or a zoning variance.

Justice Ginsburg: What do you think would be necessary to bring this practice within the constitutional boundary? Answer: We think the town needs a policy for clergy, stay away from points in which believers are known to disagree, tell pastors not to ask people to physically participate. The coercion can't be entirely eliminated, Laycock conceded, but gratuitous coercion can be.

Justice Kennedy: Your position is that town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing? That's your position? Replied Laycock: I wouldn't use those adjectives, but, yes, we don't think that's difficult to do.

Justice Sotomayor: You hear the skepticism from members of this court over how to determine what prayers are non-sectarian. Laycock said he did. But he added, if you really believe you can't draw any lines, then your alternatives are either to prohibit any prayer at all or to allow any prayer, including a prayer asking for a show of hands for believers. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.