Thursday, Aug. 21, 2014
73 ° Fair
by Paul Rasor, Center Director
In November, the Supreme Court heard arguments in a case testing the place of prayer in city council meetings. There have been dozens of cases in the lower courts on this issue in recent years, but it has been thirty years since the Supreme Court last considered the issue.
In the earlier case, Marsh v. Chambers (1983), the Court upheld the Nebraska state legislature’s practice of beginning its official sessions with a prayer offered by a Presbyterian minister paid by the state. But Marsh is an anomaly in First Amendment jurisprudence. Legislative prayer, whether in a state legislature or a town council meeting, is precisely the kind of government-sponsored religious exercise prohibited by the First Amendment’s Establishment Clause. Even the Court in the Marsh case assumed that this practice would fail any of the tests then (and still) used in these cases. In Marsh, however, the Court simply ignored these tests and instead upheld the prayer on historical grounds, noting that legislative prayer had an “unbroken history of more than two hundred years,” beginning with the very first Congress in 1789.
In the case now before the Court, Town of Greece v. Galloway, the town board invited members of the local clergy to offer an opening prayer at its regular monthly meetings. For several years only Christian clergy were invited, and most prayers referred to “Jesus” or “Jesus Christ.” After being sued the town occasionally invited prayers by representatives of other faiths, but most remained Christian. The town had no formal policy or guidelines relating to the content of the prayers. The federal district court upheld the prayer practice, but the U.S. Court of Appeals for the Second Circuit ruled that it violated the Establishment Clause because it had the effect of endorsing a particular religion, Christianity.
The Supreme Court must consider a range of issues that reflect both the difficulty of the case and the deep divisions within the Court. For example: Does the Marsh precedent control the case? What are the differences between town council meetings and state legislative sessions, and do they matter? If Marsh does not apply, which of the many (often inconsistent) Establishment Clause tests and Supreme Court precedents involving public displays of religion does apply? What if the prayers are non-sectarian? If that is the criteria, must town officials then review the prayers and act as censors? Are neutral prayers even possible, given that many of those attending the meetings are likely to be non-religious?
My own view is that government-sponsored prayer of any kind, in any setting, is not permitted by the First Amendment. Rather than offer my own analysis of the difficult constitutional issues, however, I’d like to take a step back and ask a few more fundamental questions.
For example, why open a town council meeting with prayer at all? If the purpose is to ask God’s blessing or guidance, that is a religious purpose and for that reason alone makes the practice unconstitutional. More commonly, an opening prayer is said to solemnize the meeting. Certainly this is a legitimate purpose, but we might ask whether prayer is the only way to do this. Why not a moment of silence, for example – the practice followed by the Town of Greece until 1999? Is there danger that council members won’t take the meeting seriously without a solemnizing ritual?
Some defenders of legislative prayer argue that it is not really a religious exercise. Instead, it is a form of so-called ceremonial deism, a public ritual that uses religious language but that over time has ceased to have any religious meaning. This position may be useful in constitutional arguments, but it is a dangerous stance for anyone who takes her or his religion seriously. It demeans religion by suggesting that a prayer is not really a prayer, a religious act is not really religious.
In the end, government-sponsored prayer undermines one of the core principles of the First Amendment itself, namely that religious practices such as prayer and worship should be voluntary, and are not any business of the government. As K. Hollyn Hollman, general counsel for the Baptist Joint Committee for Religious Liberty puts it, when a town council meeting is opened with prayer, “a political assembly is transformed into a religious congregation. It is because of—not in spite of—the importance of prayer and religion that we object to this government assumption of religious functions.”
The Supreme Court’s decision is expected sometime this spring.