Analysis: Supreme Court says prayer is ok, even if sectarian and lacking diversity

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U.S. Supreme Court building.

Mike Renlund via Flickr

U.S. Supreme Court building.

Guest post by Daniel Bennett

Today’s U.S. Supreme Court ruling in Town of Greece v. Galloway is destined to be a landmark case for church and state law. The Court said that local governments can include prayer in their ceremonies even if it results in one religion being represented more often than others.

The court case comes out of a complaint against the town of Greece, New York. Since 1999, the town has invited local clergy to offer prayers before its council meetings. The vast majority of congregations in the town are Christian, which means the vast majority of clergy offering prayers are Christian. After complaints from Susan Galloway, that the town was favoring Christianity, Greece invited clergy from other traditions to offer invocations (several traditions were represented, including Judaism, Baha’i, and Wicca). Nevertheless, Galloway filed suit in federal district court, alleging that the city’s program essentially preferred Christianity over other traditions.

Today, the 5-4 Court ruled that opening town council meetings with prayers from that town’s clergy does not violate the First Amendment’s Establishment Clause. Justice Kennedy argued that the majority’s decision is consistent with previous decisions on this issue (including Marsh v. Chambers, which validated prayers before legislative sessions). Further, according to Kennedy, the prayers in Greece take place during the ceremonial portion of the meetings, before any official business begins. As such, the purpose of the prayers, sectarian or not, cannot be said to be coercive, and is therefore consistent with the First Amendment.

Justice Kagan, in a dissenting opinion, suggested this situation is different from prior legislative prayer cases: “In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach to adherents of non-Christian religions.” For Kagan, the sectarian nature of the prayers, combined with the different nature of town council meetings compared to legislative sessions, renders the prayer policy unconstitutional.

This case does not represent a shift in the Court’s jurisprudence on the issue of prayer before government events. Indeed, the Court has long held that legislative prayers are constitutionally permissible. What the Town of Greece decision does, however, is expand the coverage of this precedent to local governments, which had not yet been explicitly covered by prior Court rulings.

At a fundamental level, today’s decision hinges on towns lacking in religious diversity at least making an effort to include minority religious traditions in its invocations. As long as the effort is made, the town is not endorsing a particular religion and the Establishment Clause it not violated. In this case, then, the fact that the vast majority of Greece’s prayers were offered by Christian clergy is not an endorsement of Christianity, but rather the result of the religious makeup of the community.

Supporters of prayer in these environments are celebrating this ruling, and rightly so: to deny religion’s role in American society is historically dishonest. However, the worries of the decision’s detractors are not wholly without merit. Last week, the Oklahoma legislature refused to permit a monument from The Satanic Temple to appear on its grounds alongside a 10 Commandments monument. A spokesman for Gov. Mary Fallin said, “There will never be a satanic monument on the grounds of the Oklahoma State Capitol.” And Alabama Supreme Court Chief Justice Roy Moore ruffled feathers when he suggested that the First Amendment’s religion clauses should protect only Christians, since “Buddha didn’t create us, Mohammed didn’t create us, it was the God of the Holy Scriptures.”

Although the legal implications of these issues differ from those in the Court’s decision today, the sentiments are similar: at a basic level, those criticizing Town of Greece do so in the name of equality for all religious faiths. Only time will tell how today’s decision squares with that notion. But for the moment, so long as towns and cities make an effort to include multiple religious traditions in opening prayer ceremonies, such ceremonies do not run afoul of the Establishment Clause.

Daniel Bennett, PhD, researchers the conservative legal movement. He will be joining the faculty at Eastern Kentucky University this fall.