In the United States, our tradition is to protect religious freedom by separating church and state, but not by saying religion should stay out of public life. We don't try to scrub public life clean of religiosity. —Richard Garnett
The Supreme Court will arguments today on a case that could determine the place of prayer in legislative meetings, and what role religion plays in the public sphere.
How the court rules could have far-reaching implications, bringing clarity to conflicting lower court decisions on whether local governments can display the Ten Commandments, for example, or if it's permissible to put memorial crosses near highways on public land.
In the case before the court, Town of Greece v. Galloway, lawyers for the small town of Greece, N.Y., will ask the court to allow it to continue opening meetings with a prayer, even though an appeals court ruled in 2012 the invocations were a violation of the First Amendment because they were always Christian prayers.
Challengers to Greece, led by Susan Galloway, say they aren’t necessarily looking to take prayer out of public meetings, but rather to make the prayers as nondenominational as possible.
Greece’s case is just one of a variety of court cases involving public prayer at governmental meetings. In 2003, the Utah Supreme Court ruled that a city council went against the Beehive State’s Constitution when it halted an atheist’s invocation before a meeting.
In the Greece case, the court could uphold a 1983 decision, Marsh v. Chambers, that set a precedent for allowing an invocation in legislative meetings, or it could outlaw prayer at town meetings.
The court could also rule that Greece has a rotating representation of prayer, similar to towns in Florida, Georgia and Alabama. In a 2008 decision, the U.S. Court of Appeals ruled in favor of the method, which has different clergy members of a variety of religions speak or give prayer before meetings on a rotating basis.
Ayesha Khan, who represents Galloway, said the town of Greece is forcing local townsfolk to attend meetings and listen to mostly Christian prayers. Galloway's main argument is that these prayers violate the establishment clause of the Constitution and promote Christianity. Invocations are not supposed to promote any particular religion, Khan said. She said she’d like all prayer at local government meetings to be non-sectarian.
“We just think it’s inappropriate for people to come to their meetings and then ask them to bow their heads and honor the divinity of Jesus Christ,” Khan said. " If the Constitution means anything at all, it means that people should not be pressured to pray to a God they don’t believe in."
But other legal experts say the government has no business defining what is and isn't a prayer. If the Supreme Court ruled, for example, that Greece had to use what's classified as "non-sectarian" prayer, the government would be defining what sectarian prayer is, and, ultimately, defining religion, said Thomas G. Hungar, who represents the town of Greece in the case. The Constitution forbids the government from defining what counts as religion, he said.
"We think the principles of religious freedom and tolerance or religious expression in appropriate settings should continue to exist," Hungar said.
The Supreme Court could reach an alternate decision, Hungar said. The option would still allow Greece to have invocations at its meetings but with restrictions. For example, a prayer-giver could refer to God, but otherwise couldn’t refer to anything specific that could offend people of different religions, Hungar said. Another alternative, Hungar said, would be for the court to mandate an invocation of “a civic religion," which would allow the invocation to occur but not mention God or any specific type of God.
But that might be easier said than done, according to Michael McConnell, a law professor at Stanford University.
“It’s not as if there is some core type of prayer that every faith can say,” he said. “Any prayer is not going to provide all faith perspectives.”
McConnell said he couldn’t see a way in which the Supreme Court would look to censor Greece. “It would clearly make things worse, not better to censor the content of the prayer.”
And, he said, there is no way for the Supreme Court to form a compromise between the town and Galloway.
McConnell said the town’s present prayer situation is likely to continue, especially because Galloway’s argument that there is such as a thing as non-sectarian prayer “is pretty silly,” he said.
Religion and the public square
McConnell said historically this decision isn’t a difficult one for the Supreme Court to make. Not only does the court have Marsh v. Chambers to look back on, but also the foundation of the country, McConnell said. When the First Amendment was adopted, he said, “the prayers were no more non-sectarian than the ones from the town of Greece.”
Similarly, Richard Garnett, a law professor at Notre Dame, said the Supreme Court shouldn’t show too much care in the case because of the 1983 decision. He said by bringing this case to its attention, the Supreme Court has complicated the minds of local government officials.
“If you’re a local official in any town or any state or any congress across America, you used to have a pretty good idea of what was allowed and what wasn’t,” he said. “Now this town of Greece case comes along and changes it.”
Garnett said no matter which way the court rules, religion will continue to play a role in everyday society.
He said Greece is upholding an American tradition of keeping faith engrained in public life. Religion is meant to be in the public sphere, he said, adding that religious education and formation should be left to the churches.
“In the United States, our tradition is to protect religious freedom by separating church and state, but not by saying religion should stay out of public life,” Garnett said. "We don't try to scrub public life clean of religiosity."