Many official government bodies open or conclude sessions with prayers. | REUTERS Justices hear church-state case

The Supreme Court struggled Wednesday with a church-state case that could give a clear green light for prayers at many public events, even when those blessings are clearly sectarian in nature.

Advocates of a greater role for religion in the public sphere hope that the case the justices are considering, a dispute over invocations at meetings of the town board in Greece, N.Y., serves as the death knell for the legal premise that the mere recitation of a prayer in an official context can violate the Constitution’s ban on establishing a state religion.


Two local women who sued over the New York town board’s practice said about 75 percent of the prayers were explicitly Christian, though occasionally, they have been delivered by others, including members of Jewish, Bahai and Wiccan religions.

The case appeared to turn on the views of Justices Anthony Kennedy and Stephen Breyer, judges who have been swing votes in the past on disputes over religion in government.

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Kennedy — his head planted deep in his hand through much of the argument — seem particularly pained by the choice the court faces between allowing prayers that offend substantial numbers of citizens and having government officials decide which prayers go too far in terms of proselytizing.

Kennedy worried aloud that “enforcing that standard” of non-sectarian prayers “involves the state very heavily in the the censorship and the approval or disapproval of prayers.”

For his part, Breyer seemed eager to craft a decision that would mandate broad outreach when inviting clergy or others to deliver invocations, but stopped short of anything that might smack of government editing prayers.

Breyer said one answer might be to require towns like Greece who offer such prayers to use a website or other means publicize the opportunity to sign up to deliver the spiritual messages. That might be more accommodating to religious minorities, he said. “So, you didn’t get the right prayer today….So you say: you’ll have your chance,” he suggested.

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Other justices seemed to fall into more traditional conservative or liberal camps, either favoring great discretion for legislative bodies in arranging such prayers or an explicit requirement that such prayers be non-sectarian.

Justices Antonin Scalia and Samuel Alito sounded entirely untroubled by permitting sectarian prayers, a position that Chief Justice John Roberts also appeared to agree with if a tad less unequivocally. As is his custom, Justice Clarence Thomas did not ask any questions, but he is believed to hold similar views and also views the Establishment Clause as not applying to states or localities..

Justices Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor, seemed disturbed by the sectarian prayers offered in the New York town’s board meetings.

Kagan took the lead in challenging the practice, waiting just seconds into lawyer Thomas Hungar’s argument for Greece before she read aloud a prayer offered at the town board referring to “the saving sacrifice of Jesus Christ on the cross” and to “His resurrection.”

Kagan asked the lawyer to suppose that a minister delivered that prayer at the outset of Wednesday’s argument session. “The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case,” she said, outlining her hypothetical which she suggested paralleled the New York town’s practice.

“Would that be permissible?” she asked.

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“The tradition we rely on involved legislative prayer,” Hungar replied.

Scalia said a better hypothetical would ask if a sectarian prayer is permissible if one day “a Moslem would lead the invocation and the day after that an orthodox Jew.”

“It makes a difference whether it’s just one denomination,” the conservative justice said.

Scalia also noted that each day’s Supreme Court proceedings already begin with a prayer of sorts, as the marshal announces: “God save the United States and this honorable court.” That likely offends or excludes some atheists, he said.

“There are many people that don’t believe in God,” Scalia added.

Later in the argument, Alito asked the attorney for the two women challenging the practice, Douglas Laycock, to give an example of “a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists [and] Hindus….Wiccans, Baha’i.”

“And atheists,” Roberts chimed in.

“Throw in atheists, too,” Scalia insisted, later urging the lawyer to also come up with something that “devil worshipers” could accept.

Laycock said atheists were out of luck as a result of the court’s past decision upholding ceremonial prayers, but satanists might be satisfied with a prayer referencing “the almighty.”

“If devil worshipers believe the devil is almighty, they might be okay,” he said.

“Who is going to make this determination?” Roberts asked with exasperation.

“I just don’t see how it is possible to [achieve] a compromise on anything you could call a prayer that is acceptable to all these groups,” Alito said.

However, Laycock said broadly inclusive prayers have long been said at official events in the U.S. with little evidence of proselytizing or dispute.

“You have all these lawyerly hypotheticals, but the fact is we’ve done this kind of prayer in this country for 200 years,” he said. “There’s a long tradition of civic prayer and the clergy know how to do it.”

Laycock also rejected Breyer’s suggestion of an open process, but no restriction on what’s said in the prayers.

”We think that rotation does not work,” he said, noting that a citizen might show up at any given meeting seeking assistance. “The rotation scheme will be dominated by the local majority.”

However, Hungar insisted that subjecting adult citizens to prayers they might not like was not something that should trouble the court.

“Americans are not bigots,” he said. ”We can stand to hear a prayer delivered in a legislative forum by someone whose views we do not agree with. That is the tradition in this country.”

The Obama administration has sided with the town board’s authority to allow the prayers despite their pften highly sectarian nature.. Deputy Solicitor General Ian Gershengorn told the court that a half-hour delay between the prayers and the “public forum” portion of the meeting mitigated the concern that those seeking government action might feel coerced by the invocations

Gershengorn also discouraged the court from ruling that government officials must carefully scrutinize or approve prayers to be delivered at public meetings.

“The Court should be very wary of parsing prayer to make sectarian judgments,” he said.

The Obama administration also argued that the history of legislative prayer makes some things permissible in that context that might not be in others.

“This approaching of the government body occurs against the backdrop of 240 years of history, which makes this different,” he said. “From the very beginning of our legislature…there have been legislative prayers given in the religious idiom of either the official chaplain or a guest chaplain, that have regularly invoked the deity and the language of the prayer-giver.”

The Greece, N.Y. case, the first major church-state dispute to go before the Supreme Court in nearly a decade, could be a vehicle to test the current justices’ views on whether practices seen as an official “endorsement” of a religion can give rise to a valid legal claim.

The so-called endorsement test has caused significant controversy since it was laid out by former Justice Sandra Day O’Connor about three decades ago in a concurring opinion in case over a Christmas creche in Rhode Island. She was in the courtroom Wednesday as the new case was argued.

Sen. Marco Rubio (R-Fla.) is one of 34 senatorsto file an amicus brief supporting the town of Greece and said he planned to attend Wednesday’s arguments. “The tradition of praying before meetings of governing or legislative bodies is common all across our country. In fact, it has been meaningful to me in my own career as a public servant,” Rubio wrote in a Fox News op-ed. “In the Florida State House, I often took time with my fellow state representatives to pray for the wisdom and discernment to properly serve our constituents.”

Many official bodies, including the U.S. Congress, open or conclude sessions with prayers. However, those delivering such prayers often speak in general terms about “God,” without mention of Jesus Christ or other specific religious figures or beliefs.

In 1983, the Supreme Court upheld the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a Christian minister. In a 6-3 decision, the court said the prayers delivered by a paid chaplain did not violate the Establishment Clause because they were in keeping with a tradition that extends to the first session of the U.S. Congress.

However, the majority opinion by Chief Justice Warren Burger suggested in a footnote that the Nebraska prayers were tolerable because they were “nonsectarian” in the view of the then-chaplain. Burger said that in the years before the decision, the chaplain “had removed all references to Christ … because of a complaint from a Jewish legislator.”

The former chaplain, Robert Palmer, has said in recent years that the court didn’t get it quite right, and his prayers continued to be clearly Christian, although not of any particular denomination. It’s not clear whether the alleged misunderstanding is of any legal significance to the impact of the 1983 decision.

The current dispute out of New York could also be a chance for the Supreme Court to revisit some of its language in a 1992 decision that ruled unconstitutional the practice of prayer at public school graduations. That case was decided by a narrow 5-4 vote, with Kennedy unexpectedly ruling against such prayers.

The case stemmed from a Providence, R.I., middle school’s use of a Jewish rabbi to deliver a benediction at the ceremony. Kennedy wrote that the prayer amounted to “indirect coercion” of students to subscribe to a particular religion.

Courts in general have distinguished the prohibited graduation prayer from permissible legislative prayers on the basis that there was more perceived coercion in the school context, even though attendance at the ceremony was voluntary.

However, the challengers of the prayer in New York say the prayer at the town board meetings there is even more coercive than at a graduation, since attendance at the town board is often necessary to seek permits or advocate other official action.