Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. —Justice Anthony Kennedy
WASHINGTON — A narrowly divided Supreme Court upheld decidedly Christian prayers at the start of local council meetings on Monday, declaring them in line with long national traditions though the country has grown more religiously diverse.
The content of the prayers is not significant as long as they do not denigrate non-Christians or try to win converts, the court said in a 5-4 decision backed by its conservative majority.
Though the decision split the court along ideological lines, the Obama administration backed the winning side, the town of Greece, N.Y., outside of Rochester.
The outcome relied heavily on a 1983 decision in which the court upheld an opening prayer in the Nebraska Legislature and said prayer is part of the nation's fabric, not a violation of the First Amendment's guarantee of freedom of religion.
Writing for the court on Monday, Justice Anthony Kennedy said that forcing clergy to scrub the prayers of references to Jesus Christ and other sectarian religious figures would turn officials into censors. Instead, Kennedy said, the prayers should be seen as ceremonial and in keeping with the nation's traditions.
"The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers," Kennedy said.
Justice Elena Kagan, writing for the court's four liberal justices, said, "I respectfully dissent from the court's opinion because I think the Town of Greece's prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian."
Kagan said the case differs significantly from the 1983 decision because "Greece's town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content."
Kennedy himself was the author of an opinion in 1992 that held that a Christian prayer delivered at a high school graduation did violate the Constitution. The justice said Monday there are differences between the two situations, including the age of the audience and the fact that attendees at the council meeting may step out of the room if they do not like the prayer.
In her dissent, Kagan said the council meeting prayers are unlike those said to open sessions of Congress and state legislatures, where the elected officials are the intended audience. In Greece, "the prayers there are directed squarely at the citizens," she said.
Kagan also noted what she described as the meetings' intimate setting, with 10 or so people sitting in front of the town's elected and top appointed officials. Children and teenagers are likely to be present, she said.
Kennedy and his four colleagues in the majority all are Catholic. They are: Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
Kagan was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Of the four, three are Jewish and Sotomayor is Catholic.
Senior counsel David Cortman of the Alliance Defense Freedom, which represented the town, applauded the court for affirming "that Americans are free to pray."
Ayesha Khan, legal director for Americans United for Separation of Church and State, said the court disregarded the interests of religious minorities and nonbelievers. But Khan said she saw a "silver lining" in the outcome because the court rejected a more sweeping ruling that would have made it even harder to prove a violation of the Constitution.
A federal appeals court in New York had ruled that Greece violated the Constitution by opening nearly every meeting over an 11-year span with prayers that focused on Christianity.
From 1999 through 2007, and again from January 2009 through June 2010, every meeting was opened with a Christian-oriented invocation. In 2008, after residents Susan Galloway and Linda Stephens complained, four of 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha'i congregation. Galloway and Stephens are described in their court filings as a Jew and an atheist.
A town employee each month selected clerics or lay people by using a local published guide of churches. The guide did not include non-Christian denominations, however. The appeals court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there.
The two residents filed suit and a trial court ruled in the town's favor, finding that the town did not intentionally exclude non-Christians. It also said that the content of the prayer was not an issue because there was no desire to proselytize or demean other faiths.
But a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that even with the high court's 1983 ruling, the practice of having one Christian prayer after another amounted to the town's endorsement of Christianity.
Kennedy, however, said judges should not be involved in evaluating the content of prayer because that could lead to legislatures requiring "chaplains to redact the religious content from their message in order to make it acceptable for the public sphere."
He added, "Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy."
The case is Greece v. Galloway, 12-696.
Follow Mark Sherman on Twitter at: @shermancourt