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The Supreme Court delved into a subject today that has bedeviled it for ages, how to reconcile a tradition of public prayers with this clause in the Constitution's First Amendment: Congress shall make no law respecting an establishment of religion. At issue today were almost exclusively Christian prayers that took place at town board meetings in upstate New York. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The court has struggled for decades with questions involving religious expressions that are connected to the government. On the current court, conservatives have been willing to allow greater accommodation between government and religion, but the justices are closely divided, with Justice Anthony Kennedy often the decisive fifth vote.
For purposes of today's case, the critical precedent is a 1983 decision that upheld non-proselytizing prayer at state legislatures. Indeed, even at the high court itself, there's a daily invocation of God's name.
UNIDENTIFIED WOMAN: God save the United States and this honorable court.
(SOUNDBITE OF GAVEL)
TOTENBERG: The court merely refers to God, but what about explicitly sectarian prayers at local government meetings? That was the issue in today's case. It involved two citizens who filed suit challenging the almost exclusively Christian prayers in the town of Greece, New York. Until 1999, the town opened its board meetings with a moment of silence. But when a new supervisor was elected, he instituted prayers from a rotating list of clergymen, a list that, for 10 years, until this lawsuit, was all Christian and featured prayers like this one.
UNIDENTIFIED MAN: We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality and confidence from his resurrection at Easter. Jesus Christ, who took away the sins of the world...
TOTENBERG: Justice Elena Kagan opened today's argument by reading that prayer to the lawyer representing the town, Thomas Hungar. Suppose, she asked, that at the beginning of this session of court, the chief justice had invited a minister to the front of the courtroom and the minister had asked everyone to stand and bow their heads and then given this same prayer. Would that be permissible?
I don't think so, replied Hungar. Justice Kennedy: Why not? Hungar contended there's a historical difference between prayer in the legislature, which dates back to the first Congress, and prayer in the courts, which has no similar history. Justice Kennedy: So there's no rational explanation? It's just a historical aberration?
Chief Justice Roberts chimed in noting that history doesn't make it clear that a particular practice is OK going on into the future. We may not be willing to go back and take the cross out of every city seal that's been there since 1800, he said, but that doesn't mean it would be OK to adopt a seal today that would have a cross in it.
The Justices then focused on what sorts of government meetings could constitutionally permit prayers. Justice Kennedy: If we had a prayer at a utility rate-making board, I don't think the public would understand that. Supporting the town of Greece today was the Obama administration and its deputy solicitor general, Ian Gershengorn. He reminded the justices that in their previous rulings, they had repeatedly barred any parsing of prayers. Justice Sotomayor, however, pressed Gershengorn, noting that the court has also specifically barred prayers that proselytize or damn other religions.
Unless you parse the prayer, she asks, how can you determine whether there's any proselytizing or damnation? Justice Kagan: What troubles me about this case is that here, a citizen is going to a local community board, the most responsive institution of government that exists, and instead of relating to the government as an American, she's forced to identify based on her religious beliefs, which may be different from the majority of people in the room.
Representing the citizens challenging the prayer practice in Greece, lawyer Douglas Laycock took quite a pounding, particularly from the court's conservatives. Justice Alito: You're really saying you can never have a prayer at a town meeting? Answer: That's not what we're saying. We're saying you cannot have sectarian prayer. Justice Alito: All right. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus - and, chimed in Chief Justice Roberts, atheists. Lawyer Laycock acknowledged that under the court's precedents, atheists would not be covered by a non-sectarian prayer, nor would devil worshippers. But he said that about a third of the prayers offered at the Greece board meeting were, in fact, non-sectarian.
Chief justice Roberts: Who's going to make this determination? Does an officer of the town council have to review the prayers in advance? No, replied Laycock. Principally, the clergy themselves make these determinations. There is a 200-year tradition of this kind of civic prayer, he said, and the clergy know how to do it. But, he added, the town here should have provided some guidelines, as 37 state legislative bodies currently do, as well as the U.S. House of Representatives.
Justice Kennedy, acidly: In other words, the government is now editing the content of prayers. The clergy can pray any way they want to on their own time and to their own audience, replied Laycock, but this is an official government event.
Chief Justice Roberts: What exactly is coercive in this environment? Having to sit and listen to a prayer? Answer: They're asked to stand or bow their heads, meaning that non-participants are immediately visible.
Justice Scalia, incredulous: And this is coercion? Answer: It's impossible not to participate without attracting attention to yourself. And moments later, you're asking for some action from the board, whether it is a new policy or a zoning variance.
Justice Ginsburg: What do you think would be necessary to bring this practice within the constitutional boundary? Answer: We think the town needs a policy for clergy, stay away from points in which believers are known to disagree, tell pastors not to ask people to physically participate. The coercion can't be entirely eliminated, Laycock conceded, but gratuitous coercion can be.
Justice Kennedy: Your position is that town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing? That's your position? Replied Laycock: I wouldn't use those adjectives, but, yes, we don't think that's difficult to do.
Justice Sotomayor: You hear the skepticism from members of this court over how to determine what prayers are non-sectarian. Laycock said he did. But he added, if you really believe you can't draw any lines, then your alternatives are either to prohibit any prayer at all or to allow any prayer, including a prayer asking for a show of hands for believers. Nina Totenberg, NPR News, Washington.