US Supreme Court Will Rule on Government Opening Invocation Policy

Jason Pitzl-Waters —  May 21, 2013 — 17 Comments

The United States Supreme Court has agreed to hear a case stemming from sectarian prayers before local government meetings in Greece, New York. At the heart of the case is the question of if a policy regarding invocations can be pluralistic and inclusive in letter, but not in spirit.

Rev. Kevin Kisler prays prior to the start of a Greece, N.Y., Town Board meeting in 2008. Photo: Rochester Democrat and Chronicle

Rev. Kevin Kisler prays prior to the start of a Greece, N.Y., Town Board meeting in 2008. Photo: Rochester Democrat and Chronicle

“Town officials said that members of all faiths, and atheists, were welcome to give the opening prayer. In practice, the federal appeals court in New York said, almost all of the chaplains were Christian. [...] Two town residents sued, saying the prayers ran afoul of the First Amendment’s prohibition of the government establishment of religion. The appeals court agreed. “The town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” Judge Calabresi wrote.”

This is a very big deal. One that strikes to the very heart of a “model invocation policy” peddled by conservative Christian legal advocacy group Alliance Defending Freedom (ADF – formerly known as the Alliance Defense Fund). The thesis is that sectarian prayers (rather than the “ceremonial deism” that permeates many government bodies) are constitutional so long as the written policy is inclusive of all faiths. However, they calm nervous Christian government officials worried about an influx of religious minorities by noting that no special efforts to be inclusive are necessary.

“If a public body implements a legitimately neutral policy and procedure to invite local clergy from established congregations in its community to offer an opening invocation, that public body is not required to extend any extraordinary efforts to include particular minority faiths. In other words, no apology is necessary for the demographics of the community that the public body serves.”

In short, opening invocations can overwhelmingly reference Jesus Christ, and they can send invitations only to “established congregations” (ie brick-and-mortar churches) so long as they include a religious minority who inquires/complains. Something I’ve dubbed the “include a Wiccan gambit,” which is exactly what Greece, New York did.

“In just a few seconds’ time during the April Town Board meeting, Jennifer Zarpentine made Greece history. Zarpentine, a Wiccan, delivered the first-ever pagan prayer to open a meeting of the Greece Town Board. Her hands raised to the sky, she called upon Greek deities Athena and Apollo to ‘help the board make the right informed decisions for the benefit and greater good of the community.’ A small cadre of her friends and coven members in the audience chimed in ‘so mote it be.’”

For a time, this gambit seemed to work in the lower courts. Then, the 4th Circuit Court of Appeals and the 2nd Circuit Court of Appeals both handed down rulings that called into question whether this invocation tokenism could really offset a regular schedule of Christian prayer.

“We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials. We emphasize that, in reaching this conclusion, we do not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case.

The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process. The randomness of the process, however, was limited by the town’s practice of inviting clergy almost exclusively from places of worship located within the town’s borders. The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

Cynthia Simpson and Darla Wynne

Cynthia Simpson and Darla Wynne

These cases, and the “model invocation policy” itself, are haunted by the involvement and activism of modern Pagans. It isn’t just that Greece included a Wiccan sectarian prayer among thousands of Christian prayers. The ADF’s policy blueprint was partially constructed around two 4th Circuit cases involving public prayers and modern Pagans: Simpson v. Chesterfield County, the case that helped create the so-called “Wiccan-proof” invocation policy, and the Darla Wynne case, in which a Wiccan from South Carolina won a battle against sectarian government prayer. These two cases helped set the precedents that advocates of sectarian prayer have been navigating through, and their efforts at mob-rule prayer sectarianism will finally be tested by America’s highest court.

How will the court decide? It’s hard to say. SCOTUS took a pass on considering the similar 4th Circuit decision, letting their decision stand, but they may have simply been waiting for a case that would suit the Court’s needs better. For the most part, the modern Supreme Court doesn’t like to corner itself into making sweeping decisions, and it could be that the justices see a needle-threading solution to the issue at hand. Then again, we could be in for another “ministerial exception” moment where broad new freedoms are outlined and defined. At this point it’s anyone’s guess, but I’m sure advocates on both sides of this issue are readying themselves for a fight that could shape invocation policy for a generation.


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Jason Pitzl-Waters


  • Hecate_Demetersdatter

    Oh, this will not end well. Only one reason this court would vote to grant cert.

  • BryonMorrigan

    You actually think the Conservative “Justices” give a damn about the Constitution? Scalia is more dangerous to Freedom and Liberty than a million Osama bin Ladens…

    If any halfway-intelligent person can correctly guess a Supreme Court “Justice’s” vote on an issue (unless it’s a unanimous vote), based on that “Justice’s” political beliefs…then that “Justice” is not worthy of his/her robes.

    The purpose of the Supreme Court is to interpret the Constitution. It is not a place for “Activist Judges” like Scalia, et. al. to enact their personal wars against Non-Christians, LGBT folk, and anyone else their Bible tells them to disenfranchise.

    • kenofken

      I’m not ready to give up hope on this case. Scalia is a putz, but he’s not a majority nor a swing vote and much of his thinking is nuttier than even many conservatives want to sign their name to.

      Even when justices may be ideologically favorably disposed to someone, they don’t much like being played for fools. The ADF in this case is pissing on the Court’s leg and calling it rain, and worse, they’re bragging about it! They’re coming right out and saying that it’s OK to approach the Establishment Clause in bad faith if you do so in a passive-aggressive fashion which rolls over and does what it knows to be the right thing when pressed.

      In the lofty language of Constitutional review, that sucks, and I suspect a majority will hone in on that fact, especially if the case is argued well. The ADF is trying to spin this as an issue about undue burdens to a government body to go to “extraordinary efforts” to be inclusive. It’s nothing of the kind. The intent of the ADF and it’s clients is crystal clear: To endorse some religions over others through a backhanded and not-terribly clever mechanism. It really is as transparent and cynical as the “grandfather clause” used in Jim Crow polling places. “We never SAID them boys couldn’t vote because they were black!”

  • Deborah Bender

    The current Supreme Court is unusual in its makeup in that none of the justices is Protestant, with the possible exception of Sotomayor (I don’t know her religious background.)

    Three of the justices are Jewish. The others are Catholic. Jews, whether secular or religious, have a very lively awareness of the ways that religious minorities are made invisible or treated as less than legitimate in public life by hegemonic Christianity. The three sitting on the Court are old enough to remember, as I do, mandatory school prayer and mandatory Christmas assemblies (although if they grew up in New York, they may not have been subjected to those). They are also old enough to remember when “under God” was inserted into the Pledge of Allegiance and our national motto was changed from E Pluribus Unum to In God We Trust.

    Catholics are aware that in the U.S. before the 1950s, and in parts of the country today, “Christian” means Protestant. They have a dog in this fight.

    • Eran Rathan

      That may be true, but as Bryon points out below, the NeoConservatives on the bench (Scalia, Thomas, Alito) are likely more interested in maintaining status quo and not ‘giving in to the liberal agenda’ than actually doing their job (as evidenced by most of their previous opinions).

    • Rhoanna

      Sotomayor is Catholic, although apparently not a routine church-goer.

      • Deborah Bender

        Thank you. I thought so.

  • Charles Cosimano

    It would be nice if some folks would comment who actually know something about the Supreme Court and how it works. This case presents a huge problem for them because Congress has a chaplain and opens with a prayer. So they have to actually worry about what precedent might be set by their decision. And Scalia is one of the best minds on the Court.

    • Deborah Bender

      I hope that comment wasn’t aimed at me. I took a university course on the Supreme Court, focusing on the history of free speech decisions. I’m a contributor to the ACLU and read its newsletter. I also follow reports on the Court’s working on NPR radio and TV and in the daily newspaper.

      I am not making predictions on how this case will be decided because the precedents are mixed and there is no set direction on how the law has trended over the past century. I simply wished to point out that, whereas some of this court’s decisions seem to be detached from practical reality, many of the sitting justices have had personal experience with the issues in this case and have reasons to take the arguments on all sides seriously.

    • BryonMorrigan

      I’m 2 semesters from finishing law school, and I work directly for an attorney. I guarantee you that I’ve read more of Scalia’s opinions than thou.

      Scalia has nothing but disdain for us, and is pretty much the most “consistently inconsistent” “Justice” on the court. He’s all about personal freedom…unless gays, drugs, or non-Christians are involved, then he’s practically Fascist.

      Have you forgotten his words in the dissent on McCreary County v. ACLU?

      According to Scalia, “religion” simply means “Monotheism.”

    • BryonMorrigan

      But then, I remember that you posted: “”Racist” is just leftspeak for “you don’t agree with us.” It’s something to be ignored.”…

      …so it’s really not all that surprising that you’d side with a piece of Christo-Fascist garbage like Scalia.

      “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”– Sam Adams

    • Hecate_Demetersdatter

      Oh, that would be nice, wouldn’t it?

    • GearoidMacConfhiaclaigh

      Scalia? Best? Best of anything? I bloody well doubt it.

  • Dawn Love

    I know it would scare the hell out of the Christians, but regardless of which faith is giving the invocation or prayer, it shouldn’t be something included in matters of state. I know, I know. Dream on, right? Separation of church and state is a grand idea that will be ignored as long as Christians are the majority.

  • A. Marina Fournier

    The article above says:

    A) “Town officials said that members of all faiths, and atheists, were welcome to give the opening prayer. In practice, the federal appeals court in New York said, almost all of the chaplains were Christian.

    and B) they can send invitations only to “established congregations” (ie brick-and-mortar churches) so long as they include a religious minority who inquires/complains

    Gee, I’ve seen quite a number of atheists with “established congregations”, haven’t you? Wonder where the nearest synagogue or mosque is, too.

    Yup, passive-agressive R them.

  • GearoidMacConfhiaclaigh

    My county currently has a lawsuit going on for the same thing. The Commissioners always open with blatantly Christian prayers, they’ve never had anyone else do it, or even pretended they care. I’m not party to the lawsuit, but I was party to a series of protests over it.

    Here’s hoping the courts deal with this matter clearly instead, and leave no ambiguity for Christian imperialists to push into.

  • Dana Eilers

    The evidence here for establishment of religion is overwhelming. We are not talking about a month or so of meetings. We are talking about eleven years’ worth of meetings. Just imagine what would be happening were we discussing eleven years’ worth of Muslim prayers to Allah delivered by an Imam.