WASHINGTON — The Supreme Court, testing the wall between church and state in a sensitive case, wrestled Wednesday with how far government bodies can go in offering prayers at the start of official meetings.
It seemed certain, after courtroom arguments in a case brought by two women from upstate New York, that the justices had no interest in eliminating prayer at government meetings.
Instead, the justices grappled with whether they could come up with limits that allow such prayer without making those who disagree with the message feel coerced into participating, or fear that they may alienate government officials.
Justice Elena Kagan wondered aloud whether it would be permissible for the Supreme Court to open its sessions by having a minister face the lawyers and “acknowledge the saving sacrifice of Jesus Christ on the cross.”
Suppose, the justice said, “the members of the court who had stood responded, ‘Amen,’ made the sign of the cross, and the chief justice then called your case. Would that be permissible?”
Thomas Hungar, a lawyer for the town, said he didn’t think so. But in the case of prayer before a legislative body, court doctrine has found that the country, “from its very foundations and founding,” allows it, he said.
James Lawler Duggan / Reuters
Rev. Patrick Mahoney of the Christian Defense Coalition prays outside the U.S. Supreme Court on Wednesday.
Two women, one Jewish and one atheist, sued the town of Greece, where meetings of the governing board have opened with a prayer since 1999. Until 2007, when the women complained, the prayer was offered exclusively by Christians.
It is the first case on legislative prayer to come before the court since 1983, when the justices held that the Nebraska Legislature did not violate the Constitution by opening sessions with a prayer from a Presbyterian minister acting as the state-paid chaplain.
The thorny nature of the case was apparent throughout the argument. Some justices wondered what would be an acceptable prayer to appeal to all faiths, and to nonbelievers. Justice Antonin Scalia asked, to laughter in the courtroom: “What about devil-worshippers?”
Chief Justice John Roberts wanted to know: “Who is going to make this determination?”
Scalia drew a distinction between prayers before a legislative session and prayers before a judicial session, as in Kagan’s example.
“They are there as citizens,” Scalia said, speaking of legislators. “And as citizens, they bring to their job all of — all of the predispositions that citizens have. And these people perhaps invoke the deity at meals. They should not be able to invoke it before they undertake a serious governmental task such as enacting laws or ordinances?”
Douglas Laycock, representing the two women, answered that it was fine for them to invoke a deity or have a prayer, and certainly to pray to themselves.
“We’ve said they cannot impose sectarian prayer on the citizenry, and that is very different from what Congress does,” he said. “It is very different from what this court does.”
The Supreme Court opens its sessions with an invocation: “God save the United States and this honorable court.”
In the Nebraska case, three decades ago, Chief Justice Warren Burger wrote that legislative opening prayers had become “part of the fabric of our society.” The women have argued that their case is different.
In part, they argue that in Greece, the opening prayer amounts to coercion because members of the public are often required to appear before the board for town business — as opposed to passively sitting in on a session of the state Legislature.
Chaplains in Greece, the women said, have spoken of “our Christian faith” and of “us as Christian people.” An Easter prayer at a town meeting referred to spring as a symbol of “the new life of the risen Christ,” they said.
A lower federal court sided with the town, but an appeals court sided with the women.
The town is perfectly free to open public meetings with a prayer or invocation, the appeals court stressed. But under the circumstances — including who is chosen to give the prayers and what they say — “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” the appeals court wrote.
Organizations on the political right, plus 119 mostly Republican members of the House and Senate, saw the case as a chance for the Supreme Court to clarify a confusing series of rulings on the line between church and state.
They are asking the court to adopt a simple, more permissive test — requiring only that the government not force participation in any religion or religious exercise, or create a national religion.
The Justice Department filed a brief supporting the town, citing the history of legislative prayers since the Continental Congress and arguing that such a prayer is permissible if it does not “proselytize or advance any one, or disparage any other, faith or belief.”
Besides the long history, the Justice Department said, the federal courts are not well-suited to “police the content” of legislative prayers.
Erin McClam reported from New York.
First published November 6 2013, 9:26 AM