Written by Dave Bohon
The U.S. Supreme Court will take up a case November 6 challenging prayer uttered during local government meetings, and conservative Christian leaders say the High Court's ruling could have a far-reaching impact on religious expression in America.
In 2007 the atheist group Americans United for the Separation of Church and State sued the community of Greece, New York, on behalf of two residents over the city's tradition of offering mostly Christian prayers at the beginning of its regular government meetings. From 1999 to 2007, reported The New American, “every monthly government meeting in Greece was opened with a Christian invocation. But in 2007 two city residents, Susan Galloway and Linda Stephens, complained about the trend, prompting the town to invite a Wiccan priest, a Baha’i representative, and a Jewish man to offer the prayers. Nonetheless, at eight of the 12 meetings Christians offered the invocation.”
In the original suit a judge ruled in favor of the city, finding that it had not intentionally excluded non-Christian faiths in prayers at government meetings. But in May 2012, a three-judge panel for the U.S. Court of Appeals for the Second Circuit overturned the lower court ruling, finding that the process city officials used for selecting clergy for the monthly prayers effectively ensured that the prayers would be Christian. The court ruled that although a majority of the congregations in Greece were Christian, the city could have found a way to include non-Christian invocations.
Alliance Defending Freedom (ADF), the conservative legal advocacy group which represented the community of Greece in the case, appealed the ruling and in May of this year the U.S. Supreme Court agreed to hear the case. On November 6 the justices are scheduled to hear oral arguments in the case, the first time the High Court has considered a government prayer case since 1983, when it ruled that an opening prayer at government meetings is part of the nation's fabric and not a violation of the First Amendment.
“Community members should have the freedom to pray without being censored,” commented ADF Senior Counsel David Cortman. “Opening meetings with prayer is a cherished freedom that the authors of the Constitution practiced. Americans shouldn’t be forced to forfeit this freedom just to appease someone who claims to be offended by hearing a prayer.”
The ADF noted that in August the Court received 26 friend-of-the-court briefs in support of prayer before public government meetings, including, the group said, “support from the U.S. Department of Justice, attorneys general representing half the states in the union, numerous senators and members of Congress, and a wide array of constitutional scholars, theologians, counties and municipalities, religious liberty groups, and others.”
Said ADF Senior Counsel Brett Harvey: “The Supreme Court has already ruled that prayer is an unbroken American tradition that is perfectly constitutional. Nothing has changed, so we expect the court will wish to uphold this truth.”
Predictably, Americans United for the Separation of Church and State argued that such prayers are inappropriate and should be banned by the High Court. “Americans United believes that citizens should have the right to participate in local government without being pressured to take part in sectarian prayers,” said the atheist group's legal director Ayesha Kahn. “We hope the high court agrees.”
Among the briefs filed in favor of prayer was one written by Ken Klukowski of the Family Research Council on behalf of 85 members of Congress who expressed their support for the city of Greece, New York. Klukowski predicted that if the High Court rules in favor of Greece, the decision could represent one of the most significant victories for religious liberty over the past fifty years. “It is our hope that the town of Greece will prevail before the U.S. Supreme Court in this case, and a victory for them will be a victory for all Americans of faith and for the Constitution itself,” said Klukowski. “Given that the Court has looked approvingly on legislative prayer dating to the Founding, it is likely that the Court will not only affirm prayer, but significantly strengthen the religious liberty rights of Americans in public life and the public square.”
Another conservative legal advocacy group, Liberty Counsel, filed an amicus brief in support of the city of Greece, asking the Court to overturn its so-called “Lemon” test and adopt a new evaluation which would provide that if a religious observance is in line with historical tradition and does not force participation, then it would be considered a permissible acknowledgment of religion.
“The ‘Lemon’ test, which the Supreme Court invented, has caused confusion for decades and is not consistent with the First Amendment,” said Liberty Counsel Chairman Matt Staver. “It is past time to abandon that judge-made rule and return to the actual words and intent of the First Amendment.”
Staver noted that the High Court's continuing reliance on the “Lemon” test “has meant that the Establishment Clause, designed to prevent federal establishments of religion, has morphed into a weapon aimed at eliminating all vestiges of public religious expression. Regarding the matter of prayer before public deliberative bodies, this is an easy question when the words and intent of the First Amendment control. The same Congress that approved the First Amendment voted to pay a chaplain to open every session with prayer. Under a real First Amendment analysis, this is a no-brainer.”
In a November 5 Washington Post op-ed, Alliance Defending Freedom's Alan Sears and Joseph Infranco recalled that religious coercion, which the plaintiffs in the Greece case charge, “was a great concern to the Founders, and rightly so. But their view of coercion was true coercion, in which people were ordered to act (or refrain from acting) in violation of their conscience.”
Sears and Infranco noted that for the Founding Fathers, “coercion looked more like the current health care dispute in which the government is compelling family businesses to provide insurance coverage for abortion-inducing drugs regardless of those families’ deeply held religious beliefs. That’s coercion. As to how the Founders viewed legislative prayer, there can be no question; they considered it a desired accommodation of religion, and not coercion.”
Unlike the Founders, the ADF pair noted, the plaintiffs in the present case “claim personal offense over hearing anyone pray. In so claiming, they have trivialized 'coercion' to a shadow of its meaning, rendering it instead as their personal distaste over hearing others pray. Under such a standard, virtually no religious accommodation survives, and the eggshell-thin sensitivities of the most easily offended prevail. And this, of course, is their philosophical objective.”
By contrast, they concluded, the Founding Fathers “looked for a diversity of opinions and beliefs and had the wisdom to know that accommodating religion and morality were, in Washington’s words, 'indispensable supports' to democracy. In belief and practice, they rejected paltry personal complaints like 'offense' and instead respected their differences. We may have a larger circle of beliefs today, but we would do well to follow their example.”