By Mark Sherman
WASHINGTON — The Supreme Court wrestled Wednesday with the appropriate role for religion in government in a case involving mainly Christian prayers at the start of a New York town’s council meetings.
The justices began their day with the marshal’s customary plea that “God save the United States and this honorable court.” They then plunged into a lively give-and-take that highlighted the sensitive nature of offering religious invocations in public proceedings that don’t appeal to everyone and governments’ efforts to police the practice.
The court is weighing a federal appeals court ruling that said the Rochester suburb of Greece, N.Y., violated the Constitution because nearly every prayer in an 11-year span was overtly Christian.
The tenor of the argument indicated the justices would not agree with the appellate ruling. But it was not clear what decision they might come to instead.
Justice Elena Kagan summed up the difficult task before the court when she noted that “every time the court gets involved in things like this, it seems to make the problem worse rather than better.”
The justices tried out several approaches to the issue, including one suggested by the two Greece residents who sued over the prayers to eliminate explicit references to any religion.
Justice Samuel Alito pointed to the country’s religious diversity to voice his skepticism about the call for only nonsectarian prayer. “I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups,” Alito said.
As Douglas Laycock, the University of Virginia law professor representing the residents, tried to craft an answer, Justice Antonin Scalia and Chief Justice John Roberts jumped in. “You want to pick the groups we’re going to exclude?” Scalia said. A few seconds later, Roberts chimed in, “We’ve already excluded the atheists, right?”
Greece is being backed by the Obama administration and many social and religious conservative groups in arguing that the court settled this issue 30 years ago when it held that an opening prayer is part of the nation’s fabric and not a violation of the First Amendment. Some of those groups want the court to go further and get rid of legal rules that tend to rein in religious expression in the public sphere, though there was little talk of that on Wednesday.
On the other side are Greece residents Susan Galloway and Linda Stephens who contend they and others who attend the meetings are a captive audience and should not be subjected to sectarian prayers.
Their argument appealed to Justice Sonia Sotomayor who asked Deputy Solicitor General Ian Gershengorn what he and others in the courtroom would do if Roberts “got up at the beginning of this session and said, ‘All rise for a prayer.”
Gershengorn said, “I don’t think many would sit, Your Honor.”
People attending meetings in Greece wouldn’t feel any differently, Sotomayor said. “So why do you think that someone who is sitting in a small room where hearings of this nature are being held, when the guy who’s about, the chairman of this legislative body, is about to rule on an application you’re bringing to him or her, why do you think any of those people wouldn’t feel coerced to stand?” she said.
The case is the first on prayer at government meetings since Marsh v. Chambers, the 1983 case that said prayer in the Nebraska Legislature did not violate the First Amendment’s clause barring laws “respecting an establishment of religion,” known as the Establishment Clause.
The potentially decisive vote in the case belongs to Justice Anthony Kennedy, who did not seem satisfied with arguments made by lawyers for Greece and the administration on one side and for the town’s residents on the other.
On the one hand, Kennedy said he did not like the thought that government officials or judges would examine the content of the prayers to make sure they are not sectarian. “That involves the State very heavily in the censorship and the approval or disapproval of prayers,” Kennedy said.
On the other hand, he objected to the reliance by the town and the administration on the decision in the 1983 Marsh case.
All the while, Justice Stephen Breyer was trying out potential outcomes that recognized both the tradition of prayer and the rights of religious minorities and nonbelievers. “If all that was left in the case were questions of making a good-faith effort to include others, would you object to doing it?” Breyer asked Thomas Hungar, the Washington, D.C., lawyer who is representing the town.
Hungar said he did not know but asserted that the town already has engaged in the outreach Breyer described.
Later, Breyer asked Laycock if he would be satisfied with an outcome in which the town maintained its prayer practice, but routinely advised ministers in advance of offering a prayer that the audience “is comprised of members of many different faith traditions.”
Laycock replied, “That would help immensely.”
In Greece, every meeting was opened with a Christian-oriented invocation from 1999 through 2007, and again from January 2009 through June 2010. In 2008, after Galloway and Stephens complained, four of 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha’i congregation.
Hungar said the town’s website shows four other instances in which the person who gave the prayer was not Christian, once each in 2009, 2010, 2011 and 2013.
The two residents lost their suit in U.S. District Court after the judge found that the town did not intentionally exclude non-Christians and that the content of the prayer was not an issue because there was no desire to proselytize or demean other faiths.
But a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that even with the high court’s 1983 ruling, the practice of having one Christian prayer after another amounted to the town’s endorsement of Christianity.
A decision is expected by late June.