Just minutes before the Supreme Court heard arguments over prayer at government meetings on Wednesday, the marshal of the court Pamela Talkin gaveled the court into session and proclaimed, as she has hundreds of times before, the following words:
“The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”
Soon, the marshal’s cry became, yet again, a prop in the court’s struggle to strike the right balance between public display of religion and the First Amendment’s command against government establishment of religion. It has universality—invoking God, but in a not-too-sectarian way—that appeals to both sides of the debate.
Just seconds into Wednesday’s argument in Town of Greece v. Galloway, Justice Elena Kagan wondered aloud how it would be if, instead of the marshal’s recitation, Chief Justice John Roberts Jr. had “called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators” and the minister said, “We acknowledge the saving sacrifice of Jesus Christ on the cross.”
Later, Justice Antonin Scalia repeated the marshal’s cry, “God save the United States and this Honorable Court,” and said, “There are many people who don’t believe in God. Why is that okay?” It probably was a rhetorical question; in his other comments Wednesday, Scalia made it clear he’ll support public prayer.
The marshal’s cry was cited in eight briefs in the Town of Greece case, on both sides of the dispute. At issue in the case is the New York town’s practice of allowing mainly Christian ministers to offer prayer at the start of council meetings. Ten decisions by the Supreme Court, going back to 1952′s Zorach v. Clauson, an early school prayer case, also mention it.
The same words, more or less, have opened Supreme Court sessions for more than 200 years, according to historians. Charles Warren’s 1935 tome, “The Supreme Court in United States History,” cites an eyewitness account of a court session in 1827, presided over by Chief Justice John Marshall: “The Judges were all seated, and the Marshal, in a kind of nasal tone, cried out: ‘Yea, yea, yea, yea! The Supreme Court of the United States is now in session. All persons having business before the Court, will be heard. God save the United States and this honorable Court!’… Court was opened.”
Supporters of prayer invoke that declaration to bolster their argument that recognition of a deity is deeply rooted in the nation’s public life and history. A brief in Wednesday’s case filed by constitutional scholars favoring public prayer said the court’s opening invocation is “an unusually concise recognition of, and prayer for guidance to, a provident supreme being.”
But another group of legal scholars skeptical of the practice filed a brief citing the words for the opposite proposition: “Much like the religious speech of the early residents, [the marshal's cry] is self-evidently universal and noticeably avoids any sectarian reference. This historical example is thus further evidence of a founding generation that was continually evolving toward a more national and more inclusive religious vocabulary.”
Contact Tony Mauro at firstname.lastname@example.org.