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Supreme Court Allows Prayers In Public Meetings.

Supreme-Court-Building-ROHOn Monday, the United States Supreme Court released its opinion in the case of Town of Greece v. Galloway. In a 5 – 4 ruling along ideological lines, the Justices ruled that sectarian prayers prior to public meetings do not violate the US Constitution.

Since 1999, the town of Greece, New York had opened its public meetings with a sectarian prayer offered by volunteer members of the clergy. Linda Stephens who is an atheist, and Susan Galloway who is Jewish, challenged the policy on the basis that as most of the clergy who volunteering were Christians, the town was essentially endorsing a religious point of view.

The conservative majority offered varying interpretations of when such “ceremonial” prayers would be permissible. Kennedy, along with Chief Justice John Roberts and Justice Samuel Alito, focused on the specifics of the Greece case and did not offer a broad expansion of legislative prayer.

Fellow conservative Justices Clarence Thomas and Antonin Scalia went further, suggesting that even any “subtle pressure” that local citizens might feel would not be enough to ban such prayers.

In dissent, Justice Elena Kagan said, “When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”

The two plaintiffs had acknowledged that sectarian prayers were allowed at government meetings, which meant the case centered around when does a prayer cross a line between free speech and the free exercise of religion to coercion of citizens to be a member of a certain belief system.

As it often does, the Court offered a set of “tests” to see when a prayer crosses that line:

Treating the Kennedy opinion as controlling, because it spoke to a middle-ground approach between blocs of Justices who wanted to go further in one direction or the opposite, this is the constitutional prescription it provided for legislative prayers:

First: Such prayers are not confined to meetings of Congress or state legislatures, but may also be recited in the more intimate and familiar setting of local government meetings.

Second: The prayer portion of the meeting must be conducted only during a ceremonial part of the government body’s session, not mixed in with action on official policy.

Third: The body may invite anyone in the community to give a prayer and (if it has the money) could have a paid chaplain. The officials on the body may also join in the prayer by bowing their heads or showing other signs of religious devotion, such as crossing themselves.

Fourth: The body may not dictate what is in the prayers and what may not be in the prayers. A prayer may invoke the deity or deities of a given faith, and need not embrace the beliefs of multiple or all faiths.

Fifth: In allowing “sectarian” prayers, the body’s members may not “proselytize” — that is, promote one faith as the true faith — and may not require persons of different faith preferences, or of no faith, to take part, and may not criticize them if they do not take part.

Sixth: The “sectarian” prayers may not disparage or discriminate against a specific faith, but officials need not go to extra lengths to make sure that all faiths do get represented in the prayer sessions — even if that means one faith winds up as the dominant message.

Seventh: Such prayers are permissible when most, if not all, of the audience is made up of adults — thus raising the question whether the same outcome would apply if the audience were a group of children or youths, such as the Boy or Girl Scouts, appearing before a government agency or a government-sponsored group. (The Court did not abandon its view that, at public school graduations or at events sponsored by public schools, prayers are not allowed because they may tend to coerce young people in a religious way.)

Eighth: A court, in hearing a challenge to a prayer practice, is confined to examining “a pattern of prayers,” and does not have the authority to second-guess the content of individual prayer utterances. In judging such a pattern, the proper test is not whether it tends to put forth predominantly the beliefs of one faith, but whether it has the effect of coercing individuals who do not share that faith.

Two comments from the opinion and the dissenting opinion deserve note:

Kennedy wrote that “offense … does not equate to coercion.”

One of the reasons the woman had sued the Town of Greece was that they were “offended” by the prayers. In our opinion, Kennedy’s comment is correct. In the United States where the First Amendment does not restrict speech or religious expression, it is un-Constitutional to believe that because speech or religious expression offends someone that it should be banned.

There is no Constitutional right to not be offended. If anything, if someone is offended by something, they should work to counter what is offensive to them. The founding fathers recognized the idea that the best way to deal with unpopular or offensive ideas is not the banning of those ideas, but more ideas. The way to counter “offensive” speech is not to ban speech, but more speech.

Writing on behalf of the four liberals, Justice Elena Kagan said that for years the prayers in Greece were sectarian and the town did nothing to encourage members of other faiths to give the prayers.

“In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government,” Kagan wrote.

We are baffled by this sentiment. In essence it seems that Kagan is saying the the town of Greece should have gone out and found more people of different and varying faiths other than those who were volunteering.

We would think that the town pursuing other specific religions and beliefs would be clearly seen as endorsing a religious point of view. At the very least, it would appear to be a case where the town was devoting resources to some religions and groups that they were not devoting to others.

We think that if a government is going to allow sectarian prayers, the best thing it can do is stay out of who volunteers to make those prayers. It should be up to the practitioners of that religion or belief system to come forward – not for the government to hunt for them.

It is easy to see Kagan’s viewpoint as directly contrary to the First Amendment.

The bottom line is that governments now have a series of tests as to whether their policies on prayer violate the First Amendment.


Two items of note:

Before publishing its opinion on Monday, the Court opened its session, as it always does, by announcing “God save the United States and this honorable court.”

That is somewhat ironic when one thinks that the Court was about to announce it opinion on whether there is a place for religion in government.

The second item is from the SCOTUS Blog:

The Court is next expected to take some action on religion in public life when it acts on a case that it has been holding, awaiting the outcome of the Town of Greece case. That case, Elmbrook School District v. Doe, involves the constitutionality of holding a public high school graduation ceremony in a church that has prominent displays of religious symbols and banners. That case presumably will now be scheduled for the Justices’ consideration, perhaps later this month. In that case, the practice was struck down by the U.S. Court of Appeals for the Seventh Circuit.

The Court has the option of granting review of that case, denying review, or ordering the Seventh Circuit to reconsider, in light of the Town of Greece decision.

The Elmbrook case is identical to a case here in Brevard County, Florida, where high schools in Palm Bay, Melbourne and Eau Gallie were offered the use of the auditorium at Calvary Chapel of Melbourne at little or no cost for graduations. The seating capacity of the auditorium allowed more tickets to be distributed to family members of graduates as compared to on campus auditoriums. The indoor facilities also meant that the graduation could be held out of the Florida sun and rain.

Calvary also offered their technical staff to help film the graduation and would make DVD’s of the ceremony at cost of materials to the graduating class. The class could the sell them at whatever rate they wanted and the proceeds would often go back to the schools.

However, a family disagreed with the graduation being held in a church. The School Board offered the compromise of moving the spot where graduates received their diplomas from the assembled dignitaries to a place on the stage where cameras would not see the cross that is prominently displayed in the auditorium. That compromise was not accepted and so the School Board offered to cover up the cross and other religious symbols that people may see.

The church rejected that saying “we are not going to hide or cover up who we are.”

A court subsequently ruled the graduation ceremony could not be held in the auditorium which put graduates, friends and family back in the sun and rain.



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