The U.S. Supreme Court has struggled for decades in deciding when government support for prayers goes too far. The justices’ struggle continued Wednesday in a case involving prayers before meetings of a New York town board.
The high court heard arguments in Town of Greece v. Galloway, in which the five-member town board is defending its practice of opening its monthly sessions with a prayer by local clergy. A three-judge panel of the U.S. Court of Appeals for the Second Circuit held that the prayers—overwhelmingly Christian in nature for nearly a decade—gave the appearance of government endorsing religion in violation of the First Amendment’s establishment clause.
During the arguments, a number of justices appeared reluctant to see themselves and other judges drawn into deciding the nature of prayers offered before government meetings. But it was unclear what guidance they might give to lower courts and local governments struggling with the issue.
The justices posed a variety of hypothetical situations for the lawyers arguing the case in an attempt to discern whether the prayers coerced citizens to participate or appeared to endorse the Christian faith—tests that the court has developed for establishment clause violations. They focused as well on the nature of the town board’s meetings—for example, when exactly were the prayers offered and what type of functions did the board exercise?
Justice Elena Kagan asked the town’s counsel, Thomas Hungar of Gibson, Dunn & Crutcher, if it would be permissible for the chief justice to ask a minister to come to the front of the courtroom to say a prayer. The minister would ask everyone to stand and bow their heads. Kagan then read a lengthy Christian prayer.
Hungar replied that he didn’t think that would be permissible, but distinguished between legislative prayers and prayers in the courtroom. The Supreme Court, he said, had upheld legislative prayers in its 1983 decision in Marsh v. Chambers, a case involving a paid legislative chaplain who opened sessions of the Nebraska Legislature.
In Marsh, Hungar said, the high court relied on the nation’s long history of legislative prayers in holding that the practice was constitutional as long as they did not proselytize or advance or denigrate any one religion.
But how far can the historical arguments be carried, asked Chief Justice John Roberts Jr., suggesting that some historical practices could be considered artifacts now. If the motto, “In God We Trust,” were proposed today,” he said, the reaction to it might be very different.
Hungar replied that the history of legislative prayers was “clearly important” in two ways: The practice has not led to the establishment of a national religion, and the history goes back to the very framing of the First Amendment.
He also argued there was no coercion in the town board’s practice. The prayer was offered at the beginning of the meeting during a public forum period separate from when the board acted on zoning permits and other official business.
Hungar received an assist from deputy solicitor general Ian Gershengorn, who faced a skeptical Kagan. She told him, “What troubles me about this case is that here a citizen is going to a local community board—supposed to be the closest, the most responsive institution of government that exists—and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in; whether she belongs to the same religious idiom as most of the people in the room do. And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.”
Gershengorn replied that the “difference here is that this approaching of the government body occurs against the backdrop of 240 years of history, which makes this different.” He urged the Marsh test upon the justices, saying legislative prayers passed constitutional muster as long as they don’t proselytize or advance or denigrate any one religion.
Justice Sonia Sotomayor said, “Unless you parse the prayers, you can’t tell if there is proselytizing.” And Justice Anthony Kennedy asked whether it was “honest” to ask a clergy member whether he or she seeks to advance religion through the prayer that day.
Susan Galloway and Linda Stephens filed the constitutional challenge in 2008 after complaining to the town board that they found the practice offensive and receiving no response. Shortly after their high court counsel, noted religion scholar Douglas Laycock of the University of Virginia School of Law, began his argument, Justice Samuel Alito Jr. challenged him, suggesting: “You’re saying you can never have prayer at town meetings.”
Laycock replied, “No. We’re saying you should not have sectarian prayers.” Alito pressed Laycock to give him a nonsectarian prayer that would satisfy the multiple religion adherents in the nation, and the justice seemed dissatisfied with the responses.
Roberts asked Laycock who would determine whether the prayer was nonsectarian. “The clergy makes this determination,” Laycock answered. “There’s a 200-year tradition of this kind of civic prayer. The clergy know how to do it.” He added that 37 state legislatures and the U.S. Congress provide guidelines to clergy.
Officials need to advise clergy to stay away from points about which believers are known to disagree, Laycock said, and not to ask for physical participation in the prayers by citizens. Additionally, officials should separate the time for prayer from actions by the board, he said.
Near the end of Laycock’s argument, Kagan said it would be difficult to establish rules in this area that would satisfy everyone. “Part of what we are trying to do here is to maintain a multireligious society in a peaceful and harmonious way,” she said. “And every time the court gets involved in things like this, it seems to make the problem worse rather than better. What do you think?”
Laycock answered that her view is not always true. The Fourth Circuit found a workable rule in a 2011 decision by Judge J. Harvie Wilkinson III, he said: Legislative prayer is acceptable “only when it is nonsectarian in both policy and practice.”
And he reminded the court that its ruling in Marsh sanctioned government-sponsored prayers, “and now the question is how to manage the problems that arise.”
Alito countered that the First Congress was the source of government involvement in prayer.
“They were very explicitly Christian, but that was not a point of disagreement at the time,” Laycock rejoined. “They stayed away from any issue that Protestants disagreed on.”
Contact Marcia Coyle at email@example.com.