The Supreme Court Revisits Official Government Prayer

[cbayer]

https://www.aclu.org/blog/religion-belief/supreme-court-revisits-official-government-prayer



By Heather L. Weaver, ACLU Program on Freedom of Religion and Belief at 4:52pm

It's hard to believe that, in 2013, any question remains regarding the constitutionality of official government prayers, but the Supreme Court will revisit the issue for the first time in more than a decade when it hears oral arguments this November in Town of Greece v. Galloway. The lawsuit was brought by several Greece citizens who grew weary of having Christian prayer imposed on them at the start of Town Board meetings. Today, the ACLU and its allies filed a friend-of-the-court brief in the case, arguing that the Establishment Clause of the First Amendment prohibits legislative bodies from opening their meetings with official prayer.

Government-sponsored prayer is anathema to a cardinal rule of the Establishment Clause: The government must remain neutral on matters of faith. The Supreme Court has thus ruled that public schools may not subject students to official prayer in class, at graduation, or at football games. Lower courts have agreed, barring governmental prayer in various other contexts. As these decisions recognize, when the government breaches this fundamental principle by promoting prayer, it unfairly pressures people to adopt the favored beliefs; it devalues those beliefs by co-opting them for official, unsacred purposes; and it is a recipe for religious conflict.

Government prayer is especially troubling when it is specific to one religion because it tends to exclude those of minority faiths. For example, although a Jewish, Muslim, or Sikh resident waiting to present a zoning application to the local government in Greece might be able to participate in a more generic invocation, she would be at a loss when it comes to a prayer offered in the name of "Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life." That's just one of the official prayers delivered by invited clergy at the Town's Board meetings, over two-thirds of which have been explicitly Christian since the practice began in 1999.

The Supreme Court can only blame itself for the prolonged debate over legislative prayer. Despite the clear harms associated with official religious exercise, in 1983, the Court carved out a narrow exception to the general constitutional ban on government prayer. In Marsh v. Chambers, an ACLU challenge to the Nebraska Legislature's invocation practice, the Court ruled that a long history of legislative prayer dating back to the First Congress was sufficient reason to disregard the First Amendment's neutrality mandate.

more at link

[FBaggins]

1. Seems to ignore the actual issue in the case.

The question here is whether or not this is "official government prayer"... since the government does not control the content of the prayer and allows anyone of any (or no) faith to exercise their free speech rights during that time.

The court has held multiple times that private speech (even when held at public events) is protected, but that government speech (if religious) is not. There have been some lower courts that have ruled that this type of prayer is government speech, but that hasn't reached this level until now. So the question is not whether or not "official government prayers" are constitutional (they aren't)... but whether this situation constitutes government prayer.

the Court ruled that a long history of legislative prayer dating back to the First Congress was sufficient reason to disregard the First Amendment's neutrality mandate.

For better or worse, it's hard to argue that the Founders intended to ban something that they themselves did before, during, and after the creation of 1A.

[cbayer]

2. The fact that they have agreed to hear it would lead me to believe that they

are willing to reconsider their previous position.

But we shall see.

[FBaggins]

3. Not really.

Keep in mind that the lower court ruling was that the speech was constitutionally impermissible.

The fact that they agreed to hear the case means that at least four judges think that the 2nd Circuit may have gotten the ruling wrong (though unanimously so).

Given that Kennedy is the likely swing vote and has previously accepted the precedent of legislative prayers...

... as you said. We shall see.

[cbayer]

4. Thanks for that. I'm not that familiar with how they decide to hear or not hear things,

but that makes a lot of sense.

[trotsky]

5. Well, the Founders also wrote "all men are created equal"...

while simultaneously declaring that some of them are only 3/5 as equal.

[FBaggins]

6. Correcting that required the 13th Amendment.

It's one thing to say "this is what the Constitution says". It's another thing entirely to say "the framers got it wrong and the Constitution should be amended"

One is within the power of the USSC... the other isn't.

[trotsky]

7. Considering that your argument is not what's in the Constitution, but what the Founders practiced,

I'm not sure that's a valid analogy.

[FBaggins]

8. It wasn't my argument so much as explaining existing USSC precedent.

It is hard to argue that the intent of 1A was to ban what is now called "legislative prayer" when they were practicing it at the time and never stopped.

Your post correctly points out that these same men didn't get everything right by our current standards, but that's an argument to amend, not an argument that "legislative prayer" is unconstitutional.

[trotsky]

9. As you note, our current standards are different.

And since the Constitution clearly doesn't say that legislative prayer is OK, I think it is within the SC's power to analyze the practice as it comes to our current understanding of the First Amendment (i.e., the Lemon test).

I have no doubt that the current court will continue to allow the practice, which clearly violates the Lemon test, but maybe someday things will change.

[FBaggins]

10. The President has weighed in on the other side.

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/08/SG-brief-in-Town-of-Greece.pdf

[cbayer]

11. Interesting. Is there some technical reason they have to take this position?

[FBaggins]

12. Nope.

This isn't a law that they're tasked with upholding (and even then, the executive can and has opposed existing law in court).

And this brief not only defends the town's position... it appears to be quite broad. Perhaps even asking to expand Marsh v. Chambers.

Here's a useful reading: http://www.scotusblog.com/2013/09/symposium-the-puzzle-of-town-of-greece-v-galloway/

[cbayer]

13. Interesting, thanks for that.

Based on what I am reading, I tend to think they are going to uphold the original SCOTUS decision.