By BJC Staff Reports
WASHINGTON — A divided U.S. Supreme Court ruled that official prayers opening local government meetings may be constitutional, finding them consistent with the historic tradition of chaplain-led prayers before Congress and state legislatures.
The 5-4 decision in Town of Greece v. Galloway reverses the 2nd U.S. Circuit Court of Appeals and upholds the prayer practice of the Town of Greece, N.Y., despite marked differences between the town’s practice and the one upheld by the Court in Marsh v. Chambers (1983) and practiced in Congress.
The Baptist Joint Committee for Religious Liberty filed a friend-of-the-court brief in the case, opposing the town’s practice of opening municipal meetings with prayer, saying the practice violates the conscience of those who have to be in attendance to participate in the meeting. The Court, however, found the “ceremonial” prayers at the beginning of a legislative session offered by invited clergy compatible with the Establishment Clause based upon historical precedent.
While the 2nd Circuit held the town’s practice unconstitutional because a substantial majority of the prayers contained “uniquely Christian language,” the Supreme Court noted the lack of intentional discrimination against non-Christians and rejected the challengers’ argument that the Marsh decision contains an implicit ban on sectarian references in official prayers, stating that the prayers are not likely to create a constitutional violation “[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.”
Writing for the majority, Justice Anthony Kennedy stated, “These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. … Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.” The decision also states that religious themes, such as a prayer “given in the name of Jesus, Allah, or Jehovah,” simply provide “particular means to universal ends.”
The BJC was disappointed in the decision. “While the Court ruled for the town under the historic tradition of ceremonial prayer for lawmakers, local governments can – and should – take steps to ensure that citizens are not forced into religious acts at a government meeting,” BJC General Counsel K. Hollyn Hollman said. “It is hard to square a government-led religious practice in a local municipal meeting with the Constitution’s guarantee of equal rights of citizenship without regard to religion.”
As cited in the dissent written by Justice Elena Kagan, the BJC brief says the practice infringes the liberty of conscience of those in attendance. Kagan wrote that the prayer-givers in Greece “appear almost always to assume that everyone in the room is Christian (and of a kind who has no objection to government-sponsored worship).” Her footnote points out that the BJC brief says “many Christians believe … that their freedom of conscience is violated when they are pressured to participate in government prayer, because such acts of worship should only be performed voluntarily.”
The BJC brief says the First Amendment’s Establishment Clause protects the rights of individuals and faith communities to engage in religious worship as a voluntary expression of individual conscience and prohibits the government from appropriating those rights. The Founders and our Baptist forebears understood “that prayer is an expression of voluntary religious devotion, not the business of the government,” according to the brief.
The dissent noted that the practice of the Town of Greece differs from the one in Marsh “because Greece’s town meetings involve participation by ordinary citizens,” a point also made by the BJC brief.
The dissent added that the content of the prayers given in Greece matter: they “express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present potential to both exclude and divide.” It points out that “Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions.”
“When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another,” according to the dissent. “And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”
While the justices were divided on the significance of particular facts, the decision does not create a new constitutional test for evaluating a prayer practice in a government forum. “A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent,” according to the decision. It also noted that, in rejecting the idea that the prayer must be nonsectarian, “the Court does not imply that no constraints remain on its content.”
The BJC brief was joined by the General Synod of the United Church of Christ and the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.).
Read General Counsel Holly Hollman’s analysis of the decision.
Visit the BJC’s Greece v. Galloway resource page.
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