WASHINGTON – The U.S. Supreme Court has agreed to take up a prayer case that could have a major impact on the intersection between church and state and finally bring clarity to what is constitutionally allowed – such as the mention of “Jesus” – in prayers at government meetings.
At issue is an open policy in the town of Greece, N.Y., to allow a person from the community to pray before the monthly board meetings. All clergy of all faiths in the community who wanted to pray were welcome to do so, and their names were placed on a list. Each month, the next person on the list was invited. The Second Circuit Court of Appeals in 2012 ruled that the prayers amounted to an unconstitutional government establishment of religion because most of the prayers were explicitly Christian.
The Second Circuit made clear that praying at the meetings was allowed as long as there was more balance. The town’s policy, the court ruled, “had the effect of affiliating the town with Christianity.” In one portion of the ruling, the Second Circuit frowned on the fact that that two-thirds of the prayers during one stretch contained references to “Jesus Christ,” “Jesus,” “Your Son” or the “Holy Spirit.”
SXC photo by Lionel Titu
The Supreme Court agreed May 20 to hear the case, which probably is good news for other towns nationwide embroiled in similar controversies. Including the Second Circuit, four circuit courts have ruled on prayer at government meetings, splitting 2-2, said David Cortman, senior counsel for Alliance Defending Freedom (ADF), which is representing the town of Greece. The high court likely will hear the case in the fall.
“Americans certainly should have the same freedom as the Founders did,” Cortman told Baptist Press. “[Praying before government meetings] was a practice that was established over 200 years ago and certainly should be just as constitutional today.”
The fact that most of the prayers offered were by Christians only reflected the town’s makeup, Cortman said.
“The policy is open and neutral to anyone in the community,” Cortman said. “It’s merely a matter of the demographics of the community that make up the balance of prayers. What is a town to do? Engage in a religious Gerrymander and begin busing in people from all over the state and ask them, ‘What do you believe? What is your religion? How will you pray?’ That is the exact opposite of what the city should be doing. They should just open the forum and let the people in the community pray according to the dictates of their conscience. That’s what this town was doing.”
If the town begins monitoring the prayers and not allowing certain words, you have the “the local government controlling” the prayers – which itself would be unconstitutional, Cortman said.
Americans United for Separation of Church and State brought the lawsuit against the town of Greece on behalf of two residents.
“A town council meeting isn’t a church service, and it shouldn’t seem like one,” said Barry W. Lynn, executive director of Americans United. “Government can’t serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion.”
Supporters of the town’s policy point to a 1983 Supreme Court case, Marsh v. Chambers, in which the justices in a 6-3 decision upheld Nebraska’s practice of paying for a chaplain who began each legislative session with prayer. Chief Justice Warren Burger, writing for the majority, said there was an “unambiguous and unbroken history” of legislative prayer dating back to the nation’s founding.
ADF quoted Marsh in its petition to the Supreme Court.
“The prayers in Marsh were offered for sixteen years by the same paid Presbyterian minister and frequently contained explicitly Christian themes,” ADF wrote, defending the town of Greece.
The Family Research Council submitted a brief to the court on behalf of 49 members of the House of Representatives supporting the town of Greece. The brief noted that the “majority of legislative prayers in Congress include explicit Christian content.” It also said that if the Supreme Court were to follow the Second Circuit’s logic and analyze prayers, it “would be a step toward precisely the sort of establishment of religion the [Establishment] Clause forbids.”
The case is Town of Greece v. Galloway.
(EDITOR’S NOTE – Michael Foust is associate editor of Baptist Press.)