Yesterday, oral arguments were made at the Supreme Court in the case of Town of Greece v Galloway. While there are plenty of recaps and analyses to go around, here are a few notable exchanges directly from the court transcripts:

1) Chief Justice John Roberts suggesting that we would never adopt a city seal with a cross on it today — or even adopt a motto like “In God We Trust”:

Roberts: I mean, our motto is “In God we trust,” right? That’s the motto. It’s been that for a long time, right? [Greece lawyer] Thomas Hungar: Yes, sir. Roberts: But wouldn’t we look at it differently if there were — suddenly if there were a proposal today for the first time, to say let’s adopt a motto “In God we trust”? Would we view that the same way simply because it’s — in other words, the history doesn’t make it clear that a particular practice is okay going on in the future. It means, well, this is what they’ve done — they have done, so we’re not going to go back and revisit it. Just like we’re not going to go back and take the cross out of every city seal that’s been there since, you know, 1800. But it doesn’t mean that it would be okay to adopt a seal today that would have a cross in it, does it?

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2) Justice Anthony Kennedy stating that tradition is the only argument the town of Greece has going for it… and it’s not a very good one:

Kennedy: Well, the essence of the argument is we’ve always done it this way, which has some — some force to it. But it seems to me that your argument begins and ends there.

A point for the good guys! But wait… Kennedy later changed course when questioning Douglas Laycock, the attorney for the respondents, by implying that there was really no good way to appease those arguing against the prayers unless you take most of the ingredients out of the mix:

Kennedy: Well, I just want to make sure what your position — 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? Laycock: I wouldn’t use all those adjectives, but yes. And we don’t think that’s difficult to do.

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3) Justice Elena Kagan pointed out that, in the eyes of the legislature, we’re all equal, not identified by our religious beliefs:

Justice Kagan: [Deputy Solicitor General Ian H.] Gershengorn, could you respond to this? Here’s what our — our country promises, our Constitution promises. It’s that, however we worship, we’re all equal and full citizens. And I think we can all agree on that. And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.

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4) Did Justice Steven Breyer out himself as an atheist? Check out this exchange:

Scalia: Mr. Hungar, what — what is the equivalent of prayer for somebody who is not religious? Hungar: I would —

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Scalia What would somebody who is not religious -­ Hungar: In the Rubin -­ Scalia: — what is the equivalent of prayer? Hungar: It would be some invocation of guidance and wisdom from -­- Scalia: From what? Hungar: I don’t know. In — in the Rubin case -­- (Laughter.) Hungar: In the Rubin case, a nonreligious person delivered invocations on multiple occasions. Scalia: I suppose a moment –­ Breyer: Perhaps he’s asking me that question and I can answer it later. (Laughter.)

Without hearing the recording, it’s hard to tell Breyer’s tone and if he’s responding to Scalia’s question about how non-religious people would “pray,” but that’d be quite the admission if it were…

This New York Times article certainly makes it sounds that way.

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5) The conservative bloc (sans the silent Justice Clarence Thomas) jokingly realized that no prayer would ever be acceptable to everyone — an argument that hurts the Galloway side, which was arguing that prayer was acceptable at government meetings, but only if certain conditions were met:

Justice Alito: All right. Give me an example. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer. Wiccans, Baha’i. Chief Justice Roberts: And atheists. Justice Scalia: And atheists. Throw in atheists, too. (Laughter.) … Alito: Well, that gets exactly to the — that gets exactly to the problem with your argument about nonsectarian prayer. Yes, when — at the beginning of the country, the population was 98 percent-plus Protestant. Then it became predominantly Christian. Then it became predominant -­- almost exclusively Christian and Jewish. And it — but now, it’s not that — it’s -­- it’s gone much further than that. So we have a very religiously diverse country. There are a lot of Muslims, there are a lot of Hindus, there are Buddhists, there are Baha’is, there are all sorts of other adherents to all sorts of other religions. And they all should be treated equally, and — but I don’t — 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. … Laycock: We — we cannot treat — I’m not a pastor — we cannot treat everybody, literally everybody equally without eliminating prayer altogether.

I’m all for it!

Too bad that’s not realistically going to happen.

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Overall, it appears that legislative prayer isn’t going away anytime soon. But the Court would be wise to set limits on the kinds of prayers that can be permitted at government meetings. Sectarian prayers, even if people of all faiths are allowed to say them, are undoubtedly coercive when the majority of speakers are Christians. As Laycock suggested many times during the arguments, when you’re going to a city council meeting with a request, you don’t want to piss council members off by remaining seated during the prayers. So you stand, against your own conscience, to get on their good side.

There’s just no good reason for keeping these prayers other than “it’s what we’ve always done” — and that was never a good reason to begin with.



