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The Supreme Court and Legislative Prayer

June 25, 2013 By:
Jay Wexler
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As the Supreme Court finishes up its term with critical opinions on a variety of hot-button topics like gay marriage and affirmative action, those of us who watch the Court’s First Amendment decisions carefully are already looking forward to next term, when the court will hear one of its most important church/state cases in recent years.
 
The case, Town of Greece vs. Galloway, concerns the practice — widespread throughout the country at all levels of government — of starting legislative sessions off with a prayer. The court should make it clear that legislatures may not engage in such a practice, if the prayers overwhelmingly favor one religious tradition at the expense of others.
 
The court has considered the issue of legislative prayer once before, in the much-maligned 1983 case of Marsh vs. Chambers. As I wrote in my first book, Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, “legal scholars generally agree” that Justice Warren Burger wrote Marsh “in about five minutes while sitting on the can.”
 
In upholding the Nebraska state legislature’s practice of starting its sessions off with a prayer, the Supreme Court ignored all the potential harms of legislative prayer — injecting religion into the political sphere, forcing residents to support a religious exercise that may violate their own beliefs, etc. — and simply concluded that since historically legislatures have always started off with a prayer, they can continue to do so.
 
But because Marsh involved so-called “nonsectarian” prayers (a term that makes no sense, but whatever), it did not decide whether and to what extent a legislature can begin its sessions with prayers to a specific religious figure, like, say, speaking hypothetically of course, Jesus.
 
In Galloway, the federal court of appeals sitting in New York held that the town of Greece’s practice of starting its monthly town board meeting with a prayer violated the First Amendment. In reaching its holding, the three-member panel analyzed all aspects of the town’s practice — how it chose who would pray, what the prayers said, whether the town explained the purpose of the prayer to the people who attended the meetings — in concluding that the practice, “viewed in its entirety” advanced “a single religious sect.”
 
Critical to the court’s decision was the fact that of the 120 prayers contained in the record, all but four of the prayers were given by Christians and nearly two-thirds contained specific references to Jesus, including one prayer that was delivered “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.” (Of the four prayers given by non-Christians, two were delivered by a lay Jewish man, one by the chairman of the local Baha’i congregation, and one by a Wiccan priestess, who mentioned both Athena and Apollo in her prayer.)
 
As someone who was raised Jewish and is now an atheist (with a slight Taoist bent), my preference would be for the Supreme Court to prohibit all prayers at the beginning of legislative sessions. What place does a religious prayer, however “nonsectarian,” have in a public legislative setting, where the government convenes to make laws that will govern all citizens, regardless of whether they believe in Jesus or the Buddha or Apollo or the Buddha and Apollo or nobody at all?
 
This, however, is not going to happen. A court that upholds public displays of the Ten Commandments and blesses voucher programs that send massive amounts of public funding to Christian schools is not going to ban all legislative prayer. 
 
Given this, the lower court’s approach in Galloway is a reasonable second-best solution. That court essentially applied the Supreme Court’s “endorsement test,” which asks whether, under all the circumstances, a government practice endorses religion, thereby sending a message to nonbelievers that they are political outsiders.
 
Critics of the endorsement test — which was created in the 1990s by Justice Sandra Day O’Connor, one of the court’s great pragmatists — challenge it for being, among other things, too mushy. The critics are right that the test is mushy, but that hardly distinguishes it from other tests the court uses in constitutional law. The endorsement test does, on the other hand, make sure that at least the most egregious violations of church/state separation are prohibited. The practice of legislative prayer in the town of Greece is an example of one of those egregious violations. All we can hope is that the court will agree.
 
Jay Wexler, professor of Law at Boston University, will be speaking on church/state issues at the Ethical Society of Philadelphia, 1906 S. Rittenhouse Square, at 7 pm on Monday, July 1.
 

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