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On Monday the Supreme Court of the United States (SCOTUS) upheld the right of legislators to offer sectarian prayer before conducting business. The landmark decision overturned a U.S. 2nd Circuit Court of Appeals ruling in the now famous case, Town of Greece vs. Galloway. SCOTUS’ concluded that “the town’s prayer practice does not violate the Establishment Clause.”

Photo By Jarek Tuszynski (Jarekt) (Own work) via WikiCommons

Photo By Jarek Tuszynski (Jarekt) (Own work) via WikiCommons

The case began in 2007 when Susan Galloway and Linda Stephens challenged the town’s legislative prayer practice which, to that point, had only included Christian clergy. The case was heard by the U.S. District Court in Western New York which ruled in favor of the town stating:

The Christian identity of most of the prayers givers reflected the predominantly Christian character of the town’s congregations, not an official policy or practice of discriminating against minority faiths.

The District Court also stated that the town was exempt from seeking clergy outside its own borders in order to maintain religious diversity. This ruling was eventually reversed by the U.S.Court of Appeals who felt that aspects of Greece’s prayer program, seen as a whole, did indeed endorse Christianity and were therefore unconstitutional.

In November 2013 the case moved to the Supreme Court. Monday’s ruling reflects the opinion of the District Court decision which declared the legality of the town’s prayer program. However SCOTUS’ focus moved away from the concept of “religious endorsement” toward a test for “coercion.” Are the town’s legislative prayers being used to coerce attendees into practicing or fiscally supporting the Christian faith?

The Court didn’t believe so. In its deeply divided 5-4 ruling, SCOTUS states:

Municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding which exercised government power in order to extort financial support of the church, compel religious observance or control religious doctrine.

The Court’s opinion, as prepared by Justice Kennedy, emphasizes the historical and cultural aspects of legislative prayer. He says that the purpose of such prayer is chiefly “to lend gravity to the proceedings” or “public business” not to coerce. The prayers are for the legislators; not the attending constituents.

SCOTUS’ ruling also places a powerful emphasis on national tradition and heritage. It reads:

Legislative prayer has long been understood as compatible with the Establishment clause … This fits within the tradition long followed in Congress and State Legislatures.

In essence the Court ruled that Greece’s prayer program was non-coercive and fully reflective of American historical tradition and the town’s own cultural heritage. If a legislative body employs sectarian prayer to “lend gravity” to its proceedings and does so in a way that is non-threatening, then religious prayer before a governmental meeting does not violate the Establishment Clause.

The Supreme Court of the United States

The Supreme Court of the United States [Public Domain Photo]

Not all of the Justices agreed. Two of the four dissenting opinions came from Justice Elena Kagan and Justice Stephen Breyer. Kagan’s strongly worded opinion begins:

For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian

Kagan goes on to point out that prayer in front of a large Congressional body is very different from that of a small town council. The intimate setting of the latter allows for a scenario that could lead to religious coercion through simple social pressure. That type of pressure is less likely within a giant legislative body where it might be easier to walk out, not bow your head or simply ignore the proceedings.

Justice Breyer agreed with Kagan and, in his own comments, said that legislative prayer is not solely for the officials. In that small town setting, attendees are often active participants in legislative business. Breyer also believes that Greece made “no significant effort” to mediate the issue, to invite non-Christian clergy or to create diversity guidelines for its speakers. He says:

During more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 – 2010), only four prayers were delivered by non-Christians. And, all of these occurred in 2008, shortly after the plaintiffs began complaining about the town’s Christian prayer practice and nearly a decade after the practice had commenced.

Since Monday the National American Civil Liberties Union, Americans United, Hindu American Foundation, The Religious Action Center of Reform Judaism, Freedom From Religion Foundation and many other organizations have expressed their fear and disappointment in the SCOTUS decision. As stated by Rob Boston from Americans United for Seperation of Church and State (AU), “This ruling is out of step with the realities of modern-day America, which is marked by expanding religious and philosophical diversity.”

Pagan Artist RC DeWinter tweeted, “This is just the first chink in the wall.” The wall being the one established between religion and government. It is the one that provides for the religious freedoms described in Kagan’s opening statement.

Pagan Blogger Literata, expressed her owns concerns saying “The decision is all about accommodating the majority rather than protecting the minority. In the meantime, we run a serious risk of being used as cover – call it the “I Have a Wiccan Friend” defense.”

[Public Domain Photo]

[Public Domain Photo]

Their fears and frustrations may very well be justified. In Roanoke County Virginia, Board Supervisor Al Bedrosian has already established a plan to overturn the County’s prayer policy which currently allows for the region’s “expanding religious diversity.”

After Monday’s SCOTUS ruling, Bedrosian said “I think we have to say more or less that we’re a Christian nation with Christian ideology … we need to move toward our Christian heritage.” He has openly expressed concerns about the County’s policy being one that could allow for “Wiccan and Satanist” prayers. When the local Roanoke reporter asked if his proposed policy would permit non-Christian prayers, he said “probably not” adding that non-Christians were welcome to pray during the “allotted time for citizen comment.”

Despite Bedrosian’s grandiose statements, SCOTUS did not offer a complete free license to pray in any form before governmental meetings.There are limits and boundaries.The decision reads:

If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.

In that statement, the Court recognizes the potential for abuse. However SCOTUS didn’t feel it is place of the Courts to determine the constitutionality of specific language within a single prayer speech or what can and can’t be said. In addition the Judges themselves could not agree on the exact boundaries of the “coercion test.”  What constitutes a coercive prayer or action and what doesn’t?

With the new approach is the Court suggesting that it is now constitutional for a government to endorse a single religion through legislative prayer provided that the prayer speech does not coerce anyone into participating or threaten “damnation?” How important is historical precedent or tradition in deciding future policy in a changing culture?

As AU’s Rob Boston said “I suspect we haven’t seen the last of this issue.”