Supreme Court will rule on prayer at government meetings

Richard Wolf | USA TODAY

WASHINGTON -- The Supreme Court agreed Monday to consider whether prayers can be offered at government meetings -- a practice that's been common in Congress and throughout the states for more than two centuries.

The religious expression case, which comes to the court from the town of Greece, N.Y., focuses on the first 10 words of the First Amendment, ratified in 1791: "Congress shall make no law respecting an establishment of religion."

That Establishment Clause was violated, the 2nd Circuit Court of Appeals ruled last year, when the Greece Town Board repeatedly used Christian clergy to conduct prayers at the start of its public meetings. The decision created a rift with other appeals courts that have upheld prayer at public meetings, prompting the justices to step in.

Alliance Defending Freedom, an Arizona-based Christian non-profit group, appealed the case to the Supreme Court. It is supported in separate briefs by 49 mostly Republican members of Congress and 18 state attorneys general.

In a press release entitled "Prayer will be heard on high," the group noted the high court affirmed the practice of prayer before public meetings in the 1983 case Marsh v. Chambers, in which it cited an "unambiguous and unbroken history" of such prayers.

But recent legal attacks by individuals and groups claiming to be offended by such prayers have created significant confusion in the lower courts.

"A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn't like," said Brett Harvey, a senior counsel with Alliance Defending Freedom. "Because the authors of the Constitution invoked God's blessing on public proceedings, this tradition shouldn't suddenly be deemed unconstitutional."

Thomas Hungar of Gibson, Dunn and Crutcher, the attorney who filed the challenge, said, "The practice of legislative prayer is firmly embedded in the history and traditions of this nation. We hope the court will reaffirm the settled understanding that such prayers, offered without improper motive and in accordance with the conscience of the prayer-giver, are constitutional."

Americans United for Separation of Church and State, a Washington, D.C.-based watchdog group, is representing the two women who challenged the town's practice, Susan Galloway and Linda Stephens. Galloway is Jewish; Stephens is an atheist.

The women don't question all government prayers. Rather, they argue that in Greece, virtually all of the volunteer clergy were Christian, and two-thirds of the prayers delivered between 1999 and June 2010 contained references to "Jesus Christ," "Your Son," "the Holy Spirit" or "Jesus."

The town allows any member of the clergy or citizen to conduct the opening prayer, and over the years prayer leaders have included a Jewish man, a Wiccan priestess and the chairman of a local Baha'i congregation. But the appeals court ruled that because Christian prayers dominated, it appeared the town had taken sides.

"A town council meeting isn't a church service, and it shouldn't seem like one," said Rev. Barry Lynn, executive director of Americans United. "Government can't serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion."

The appeals court said the problems it found with the town's policies "may well prompt municipalities to pause and think carefully before adopting legislative prayer." That, along with split decisions out of other appeals courts in Georgia and North Carolina, may have forced the Supreme Court's hand. Three times before, it had refused to hear similar cases.

Kenneth Klukowski, a lawyer for the Family Research Council who filed a brief on behalf of the 49 U.S. House members, said the Supreme Court was correct to take the case to clear up differences among lower courts on the issue of religious expression. It represents the first such case to reach the high court in more than a generation.

"If the 2nd Circuit's decision is what the Establishment Clause requires, then Congress has been violating the Establishment Clause since it was ratified in 1791," Klukowski said. His brief notes that in the 112th Congress, 97% of the prayers used to open House sessions were Christian, as opposed to Jewish or Muslim, yet the practice is widely accepted.

The court will hear the case in its next term, which begins in October. Its decision, expected by June 2014, could have broad implications for public schools and events, as well as for individuals who seek to convey religious messages.

Contributing: Meaghan McDermott of the Rochester Democrat and Chronicle

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