Since 1999, the governing board of the town of Greece in suburban Rochester, N.Y., has opened its monthly public meetings with a Christian prayer. Now the Supreme Court will decide whether that practice violates the Constitution.
On Wednesday, the justices will hear a legal challenge brought by two women, one Jewish and one atheist, who claim that the town prayers amount to government endorsement of a single faith.
"I don't think you should have to endure religious indoctrination in order to participate in your own town government," says Linda Stephens, one of the challengers.
Susan Galloway, the other woman involved in the case, says: "I think it is very dangerous when a government aligns itself with a religion, not only for the government but also for a religion. It can corrupt both."
But the town supervisor, John Auberger, defends the practice, which he introduced when he was elected in 1999. "We have a rich tradition, back to our founding fathers, of opening legislative meetings with a prayer. We offer the prayer to anyone who wanted to say it, and we did not regulate the content."
The issue in the case is not whether the town can open its meeting with any prayer at all. Instead, the challengers claim that the prayers offered by the town, because they are almost entirely Christian, cross the line into official endorsement of a specific religious faith.
The Supreme Court last considered the issue of legislative prayer in 1983, ruling that the Nebraska legislature did not violate the Constitution by opening its sessions with a prayer from a Presbyterian minister who was paid to act as the official chaplain. But in other cases, the court has held that governments cannot appear to endorse a particular religious message.
Even so, the challengers in this case, backed by Americans United for Separation of Church and State, argue that this context is different, because the members of the public who attend Greece town board meetings are not simply part of a passive audience, as they would be at sessions of Congress or state legislatures.
"Citizens who attend these meetings are not observers. They are active participants, often at the board's invitation or direction," says Ayesha Khan of Americans United. "Those seeking a zoning change or a small-business permit are legally required to attend and make their case."
And anyone who refrains from participating in the prayer would clearly stand out, she argues.
Civil liberties groups, including the ACLU and Anti-Defamation League, go further by arguing that the town's prayers are not merely ceremonial. "For many devout believers, prayer is the quintessential holy act,” they wrote in a friend of the court brief. “By its very nature, governmental prayer, even if nonsectarian, places the state firmly on the side of religion."
They urge the court to overrule its 1983 legislative prayer ruling or, at the very least, insist that governmental bodies strive for neutrality among faiths.
The town has the support of 23 states, 119 members of the U.S. Senate and House, and the Obama administration. They say that the tradition of legislative prayer began with the very first session of Congress.
"The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references," the Justice Department argues in a friend of court brief. "Neither federal courts nor legislative bodies are well-suited to police the content of such prayers."
The Supreme Court's rulings on the separation of church and state have produced a confusing array of tests to determine when the government goes too far. In some contexts, the court has said the issue is whether a neutral observer would conclude that a practice amounts to endorsement of a religious point of view. In others, however, it has ruled that a practice is permissible as long as members of the public do not feel coerced to participate.
Paul Clement, a former Justice Department solicitor general, says tradition may be the most important element in deciding the fate of the Greece town board prayer. "It's constitutional because there's a history,” he says. “Not because there's a good argument for it."
First published November 5 2013, 10:55 AM