Town Hall in Greece, N.Y.
Town Hall in Greece, N.Y. (Wiki)

More than 200 years after Thomas Jefferson and James Madison launched the freedom of religion v. freedom from religion debate, Monday’s U.S. Supreme Court decision allowing prayer at government meetings suggests the Jeffersonians and Madisonians remain in a dead heat, observers said.

The court’s 5-4 decision in Greece v. Galloway, 12-696, could have a significant impact on church-state jurisprudence, as the majority found nothing constitutionally askew about an upstate town’s decision to open its meetings with what turned out to be, on many occasions, prayer that expressed Christian beliefs. But the decision did not go as far as religious rights groups wanted, nor as far as “wall of separation” absolutists feared.

See Related Story: Divided Supreme Court Blesses Town’s Opening Prayer

“Jefferson wanted a total separation of church and state, Madison wanted to ensure that all religions are treated equally. The facts of this case do neither,” said Louis Grumet, a retired attorney in New York who was the prevailing lead plaintiff in an important establishment clause case 20 years ago, Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994).

Greece v. Galloway challenged a long-standing practice in a suburban Rochester town where the local government routinely opens its sessions with a prayer. In a closely divided opinion, the Supreme Court said the prayer is more “ceremonial” than religious, even though it focuses on a Christian deity. But the majority, reversing an opinion of the U.S. Court of Appeals for the Second Circuit (NYLJ, May 18, 2012) made clear that the decision does not give carte blanche for religious activity at government meetings.

Greece Town Supervisor Bill Reilich noted at a noontime press conference that the court itself opens its public sessions with a prayer: “God save the United States and this honorable court.” Reilich said the decision allows the town to maintain a long tradition in government.

“In every legislative body I have personally ever served, the Monroe County Legislature, the New York State Assembly and now as the supervisor of the Town of Greece, the meetings have opened with a prayer,” Reilich said at the press conference, according to a statement provided by his office. “As Americans, we are free to pray, we support diversity, we support freedom and we support the Constitution of the United States, where free speech will always prevail.”

Richard Barnes, executive director of the New York State Catholic Conference in Albany, said the ruling “reaffirmed the rightful place of ceremonial prayer in the proceedings of American government.” The conference represents New York State bishops at the capitol.

“A simple reading of the Declaration of Independence confirms that this nation was built on the foundational understanding that our rights are derived from our creator, whereas government is the instrument made by the people ‘to secure these rights,’” Barnes said in a statement. “We do not owe our thanks to government for our rights. The Constitution was and is merely a written and interpreted expression of the rights already granted us by God. Our uniquely American public ceremonial prayer is a recognition of these ‘self-evident’ truths, and those who seek to undermine this practice do so, unwittingly perhaps, but systematically and steadily, at the peril of the Republic.”

William Donohue, president and chief executive officer of the Manhattan-based Catholic League for Religious and Civil Rights, said the ruling “moves us toward greater tolerance.”

Donohue said in an interview that the brief prayer recited at Greece town board meetings is obviously ceremonial. He said he is concerned that the Supreme Court decision, which suggests that a less ceremonial and more spiritual prayer would violate the Constitution, is wading into dangerous constitutional waters—a view articulated in the majority opinion by Justice Anthony Kennedy.

“I was particularly struck by Justice Kennedy when he made the argument that we have to be careful about [forcing] chaplains to redact religious content from their message in order to make it acceptable for the public square,” Donohue said. “That is one of my biggest fears. We are supposed to have a separation of church and state, but when we have the heavy hand of the state making decisions about the content of a prayer and whether it is too religious, I find that deeply troubling.”

Donohue said the mere potential that recognition of religion could become coercive does not justify banning spiritual references from government functions.

“I think [Justice Samuel] Alito was right to say [in a concurring opinion] that this list of horribles that people trot out is not going to cut it,” Donohue said. “That is the old ACLU and law school argument—’What if?’ If the best they can do is talk about some hypotheticals in the future, it is not very persuasive.”

Donohue said the decision will protect local governments from “secular bullies” whose “goal is to neuter the religious heritage of this country.”

“This is a setback for them, and I’m delighted that it’s a setback,” Donohue said. “I only wish it was stronger than 5-to-4, but I’ll take it.”

Gregory Lipper, an attorney with Americans United for Separation of Church and State in Washington, represented the plaintiffs: Susan Galloway, who is Jewish, and Linda Stephens, an atheist. Galloway and Stephens regularly attend Greece board meetings and, according to their briefs, were offended and marginalized by the recitation of what was usually a Christian prayer.

“The legal implication are that people from minority religions or nonbelievers are much more at the mercy of religious majorities now,” Lipper said. “I do not think this decision can be squared with the views of Thomas Jefferson, or any of the Founding Fathers more generally.”

Lipper that even with this decision “the check to local governments is not completely blank.”

“While the court did not appreciate the inherently coercive atmosphere in these local meetings, it did suggest that if government officials pressure citizens to join in the prayers that would present a problem of unconstitutional coercion,” Lipper said. “I think the decision does put religious minorities in an impossible position, but at least there are limits.”

Grumet, who follows Establishment Clause cases, said the majority opinion “is an enormous step away from the church/state jurisprudence of the last five decades.”

“It makes the assumption that this is a country founded to support religious individuals, which is true,” Grumet said. “But it ignores that in order to do that, we must have a strong separation of church and state. Our Founding Fathers knew the bloody history of church-state religions in Europe and tried to isolate themselves from it.”