SCOTUS Ruling Favors Sectarian Legislative Prayers

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.”

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67 thoughts on “SCOTUS Ruling Favors Sectarian Legislative Prayers

  1. I certainly agree that another chink in the wall has left a big mark; I wonder what terrors will have to unfold before that day’s “work” will be undone. Mike Weinstein has been fighting this kind of nonsense in increasingly Dominionist-minded military settings for some time; I hate to think how this ruling will undermine his work, too. Marginalization by religious preference — oh, had you told me I’d see this here, I once would have argued.

    • Not a chink in the wall at all. There is nothing in the constitution about seperation of church and state. That came from a letter from Jefferson to the Danbury Baptists.

      • Bianca, Jefferson’s “separation” was descriptive commentary on (his view of) the reality of the First Amendment and the no religious test statute.

        The Constitution is a series of components that must first be viewed in a gestalt. The components have importance in isolation, but are never completely isolated from the rest. The “wall” exists, if only as a metaphor, but it at that abstract level the Constitution indeed has it.

        • My major in college is Legal. I happen to find constitutional law to be a passion of mine.

          • I understand Stare Decis. I also understand that SCOTUS has reversed decisions, and not listened to Stare Decis.

          • I believe the seperation of church and state, (Heritage foundation) was brought about by Hugo Black.

            The phrase is not in the Constitution, it is in Jefferson’s letter to the Danbury Baptists. The phrase you are looking for is the Establishment clause, which is in the constitution.

            Now, the founders, according the textbook I was reading and have previously mentioned…. Had 3 minds on this.

            You had the firm separators of church and state.
            YOu had the permeable separation of church and state
            and you had those that simply meant, the state could not make a state religion(the argument used by the Heritage foundation). Which has led to many of the court cases in front of the Supreme court and they have vacillated in their rulings.

          • If the courts didn’t change their opinions or reverse decisions EVER (which I’m taking you mean by saying ‘not listened to stare decisis’ – which…all stare decisis means is that the court is inclined or tends to rule as it has in the past), our legal system would look radically different than it does. Unless you’re saying something else, in which case I have no idea why you said ‘not listened to stare decisis’.

      • The exact phrase is not in the Constitution, but Article VI “no religious test for public office” and the First Amendment make it clear that the United States is a secular system of governance, not a theocracy or confessional state.

        • Having prayers before a meeting, that are voluntary does not make us a theocracy, nor a confessional state. That’s more than a bit hyperbole.

          • You have obviously never been in a situation where such prayers took place, and someone busily noted who looked “participatory” and who did not — for later consideration of promotion or firing. It isn’t hyperbole in a setting where your employment or advancement depends on how you respond to an allegedly “voluntary” prayer.

          • There is recourse for such things, they are called lawsuits. Though I would also point out, they aren’t just looking at you, whether you participate in such a prayer, they are always looking at you. Nor are we talking employment here, this is a town hall meeting. That’s just the objective pov

            My subjective pov, when are we(Pagans) going to stop playing the victim card? Town hall prayers, honestly is not that big of an issue. 4th amendment violations, big issue. Bunch of town folk bowing their head, before what may be a contentious argumentative debate over water bills, taxes and school bonds, not that big of an issue.

            There are examples of a theocratic state, Town hall prayers is not one of them. So yes, it is hyperbole.

  2. Not a big surprise, it’s a typical vote by the Roberts Court. It bears noting, though, that all three Jewish justices opposed the Court’s opinion, while five of the six Christian (Catholic) justices upheld it. Not that they’d be biased or anything…

    • Yep, religious minorities understand the meaning of “coercion” quite well.

    • Accusations of bias based on superficial knowledge of the justices is so very easy. Show proof that they are using such bias in their decisions, and your Congresscritters will be obligated to investigate and possibly bring articles of impeachment against them.

      This is not a game. None of us at any point are promised that our feelings will be spared by the decisions of any court (or jury for that matter). You are welcome to dismiss them on superficialities, but not without my dissent.

      I’ve sat on a jury in a criminal trial. Every juror in the deliberation room took the duty seriously. That is the standard on which I evaluate justices, and none of them to my knowledge fails to meet it.

      • If you think these “justices” aren’t biased, then why are they all described as “conservative”, “liberal”, or “moderate”? If they were actually ruling based solely on the Constitution, rather than their own biases, then their decisions would all be “per curiam”.


        Someone Graduating Law School in 11 Days, and Works For a Law Firm

        • I concede the direct knowledge part of the field to you, happily. I’m a private citizen who takes his obligations, duties and oversight (“We The People”) of government seriously. My answer is from that position.

          Jurisprudence has never been completely objective. No one sanely expects it to be. We do expect justices at every level (acknowledging the exceptions) to rule on law correctly despite their personal opinions and feelings. This is the point of rule of law oversight being delegated to an independent judiciary.

          Labelling is somewhat subjective, and always political, I assert. Asking why they are described in any way begs the question: What is the motivation of those crafting the descriptions, and how are the descriptions being used to manipulate our perceptions and perspectives?

          Qualify the label, I insist. Is the justice conservative compared to precedent and the decisions of his predecessors? Is the justice liberal because she is expected to promote a political agenda with her decisions? Is the justice moderate because he is fed up with the propaganda surrounding the issues?

          The other term lurking in the shadows is “prejudice”. I hear it echo in the rhetoric around bias. I welcome your personal clarification of that, and I ask my own question in return: If one’s disagreement with the decision is phrased even mildly as ad hominem, on what basis am I motivated to offer respect for it? Explain it, I beg. Personally, I always make room for passion and rarely accept it as reason for agreement.

          • Hey babe, this is the definition of Per curium.

            While justices do have political biases, I believe those lables are the ones given to them by others, in how they wish the constitution was viewed vs what they view politically. Warren court was considered a very liberal court. I however as a more Conservative political person would have it no other way and Thank the Gods for that court.

          • Raises eyebrows. You lost the ability to be objective and look at the argument. Or has law school told you it’s ok to toss out personal attacks and think you can be respected?

          • If you think you can support anti-Pagan activists on a Pagan board and be “respected”, then you’ve got another thing coming. Your toadying to the Christian Taliban is noted.

          • There are no anti Pagan activists in this SCOTUS ruling. You can’t even compare the Taliban to the Fundamentalist Christians, so yet more hyberbole. Nor am I, nor should any Pagan be required to leave their brain at home and devolve to group think. If you can’t handle conflicting opinions, that’s your personal problem not mine.

          • You couldn’t argue with Scalia or Roberts and win. For your edification…

            I’m an originalist on the 1st and second(for instance I would disagree with scalia on felons needing background checks. Everyone has the right to a gun end of story), and an living on the 4th and other amendments. I have read Roberts and the proceeding arguments on living vs originalist document and frankly I like Ginsburg better. That being said Roberts, Scalia and their predecessors has viable rulings that I have agreed with.

            AS to whether my opinioin is worth merit, you can suck it. Acting like a two year old, stomping your feet and yelling, you are a doo doo head in what is essentially a intellectual debate, does not make you all that and a bag of chips. Grow up.

          • Pagans who support anti-Pagans are not worthy of respect, but only scorn and ridicule.

            Sam Adams described similar people when he said that bit about crouching down and licking the hands that feed you. (Would you tell him to “grow up” as well for having an emotional response to people with such lacking integrity?)

            Either way, I have to go practice LAW now… you’ve been sufficiently ridiculed for the day. Be glad I’m on a phone, and can’t type lengthier responses. Have a nice day.

          • I guess you’re unfamiliar with the powers of a legal intern in Florida.

          • Clearly, you are angry that B and I are not automatically crouching down and licking your annointed by law school hands.

            You are a bigot, sir, and you are unwelcome in my home. Feel free to make any and every assumption about that as you wish. Good day.

          • You clearly misunderstood my Sam Adams reference, which was not about you licking MY hands, but those of the Christians you so desperately wish to serve.

        • Everyone is biased, that’s a given.

          You are conflating politics in this. The liberal judges, or moderate judges or Conservative ones, are labels put upon them by other political parties.

          Robers is a conservative judge, because he interprets the Constitution in an originalist fashion. Not because he agrees with Barry Goldwater. Now I’m pretty sure he’s a Republican, and you can speculate on how he votes, but I doubt you could pin him down to Conservative or Moderate. (and for your edification Reagan was a moderate)

          Kennedy is considered a moderate, based on his decisions, not on his political persuasion. Now I can guess he’s a Democrat, and I can speculate but I doubt I could pinpoint on how liberal or moderate his political views are.

          The terms on Liberal, Moderate and Conservative in regards to Scotus, are not in politics, but in how they view the document. Is it unchanging aka originalist or a living document.

          • Justices like Scalia are “Conservative”, because they advocate Conservative Judicial Activism. Ex., See Scalia’s dissent on Lawrence v. Texas, or his comments about how only “Biblical Monotheism” is protected under the First Amendment.

            Yeah, those are the Christo-Fascists that you are defending in a Pagan forum.

          • Wow. Do you get royalties for invoking Godwin’s Law?

            Son of a Holocaust survivor.

          • Your credibility has been self-reduced to the point that I am skeptical of your claims to any training for a legal profession. Propaganda is not rational debate. You seem well suited for a career in politics.

            Former ERISA expert

          • I just left court about half an hour ago.

            “Propaganda” is what Bianca is pushing, directly from the Heritage Foundation, which fights for many Christian Supremacist concepts, and other talking points that she probably heard on Rush Limbaugh’s show or something.

            But hey, you can go on believing that people like Scalia don’t have any bias.

          • Well, receive the respect you offer: In my initial post on this tangent, I wrote “Show proof that they are using such bias in their decisions…”.

            Either you failed to actually read the post, or your comprehension skills are sorely lacking. If you can’t understand the difference between “having” and “using”, you might want to consider a career that doesn’t challenge your personal lexicon.

          • I guess you didn’t read the decision, or dissent, as it’s pretty clear that it was a party line vote. It’s sad that you aren’t able to comprehend such a simple concept.

          • I’m regretting not identifying the troll before now. Let it go.

          • The heritage foundation is biased, I already said that in the link. IF I had found something the same from the ACLU, I’d have said it is biased as well.

            Heritage is no worse than the ACLU, it just holds to different political philosophies. Seriously you are going to blow a gasket because I linked to the heritage foundation? It gives the context and the history, it argues fairly well, and it’s a useful link.

            Good Gawds man. really WTH. I go back with grow up .

          • I’ve read his dissent on Lawrence vs Texas. I had to, in order to figure out how SCOTUS was going to rule on DOMA and the other case that I currently forget.

            Your point? Oh right, it’s indicative of him being a Christian Fascist, because if you throw enough bad names out, it will be true. No, news flash, Scalia is a Catholic and based on his dissent, probably a more conservative one. That doesn’t mean every opinion he issues is bad. If you throw out his opinions and other Christian fundamentalists because they don’t’ agree with your own, you are just being down right prejudiced. Ergo you act no better than the White Supremacists.

    • I’m actually likely to get started on that sort of a project. Hopefully it grows into something useful and it’s only an idea in the minds of myself and a few friends, but we’ll see what comes of it. I want to also make sure that whatever gets built (if something gets built and if I have a say) that it also includes, as Hecate Demeter wrote yesterday at Witches & Pagans, that it have a way to report back on the successes and failures found while trying to provide the service.

      • Excellent. Great minds. 🙂

        I hope you’ll keep folks here posted on any progress. I think it’s a very worthwhile venture.

          • I’m not discouraging this, only calling for mindfulness of context. Such a project would, in part, mount a First Amendment-based cultural confrontation in those parts of this country that are obdurate on the matter. There’s history there, and no shortage of hot tempers. At the very least the people who take point should prepare to be besieged.

  3. Heather May I suggest you take a look at the Annotated constitution, and some of the law reviews about this.

    • I have read portions of the annotated Constitution as well as the full 60+ pages of the SCOTUS ruling. Which law reviews do you suggest?

      • Harvard law review is good. I would google law reviews themselves and keep an eye out on what they say. They give context as well as the precedent.

        I suggested the Annontated because it is cheaper than getting Rights Liberties and justice, constituional law for a changing america(gives context and history. If you can get it, I think you would find it useful. aS well as Judicial Process Law, courts and politics in the United States. You don’t need the newest edition btw.

        I’m looiking through the first book now.

        Edited to add, the Anontated constitution, also gives you the prior ruling and allows you to see the patterns that they are using for their arguments.

  4. I generally jump with both feet into discussions about the legislation of morality… and truth be told, I often start them myself. It’s one of the hotter buttons I have.

    The dividing line separates the legal from the social. SCOTUS, however much you distrust the individual justices, have the duty to rule solely on the legal side of that divide. Of course there are impacts in both diretions, but that’s where the legislation of morality rears its ugly head.

    There is no slippery slope here unless we — non-Christians of every stripe — allow it to happen. It challenges us to make ourselves targets on social levels, as much as or more than we’ve seen aplenty, but I personally take a hard stance about that: Christians in their majority have for too long been aided and abetted in their bullying of non-Christians. The only remedy to it is to stand up to them and make is stick, using the law as a recourse to their bullying, not as a weapon against them.

    • Maybe.
      Prior to taking my legal classes, I was more of a Roberts originalist. However Judicial Process law, courts and politics in the united states was eye opening in context. So was Rights, Liberties and Justice, Constitutional law for a changing america.

      I think you might be interested in both of those books.

    • Also, I think you may want to take into account that the court has to take into account the government officials right to religion as well.

      • In the instance, if I got the News Hour narrative right, the chaplain du jour is facing the attendees, not the council.

      • I can’t remember where I read it — my sieve-like memory keeps echoing the elder Adams and Madison — so I can’t provide citations:

        I strongly agree with the notion that government representatives, elected or appointed (including employees) are not afforded the same opportunities to exercise their freedoms as other citizens while they are in the process of performing their duties. I do not presume to take that as anything close to easy for them.

        I take their claims to rights with a very large grain of salt.

  5. Simple questions.

    Does invoking a specific god before a governmental meeting mean that god has sanctified the decisions made at that meeting?

    Does invoking a god before a public meeting mean that god has sanctified the actions of government agents?

  6. A simple, practical matter that no doubt weighed in the decision. Congress and the Court both open with a prayer. No ruling was going to come down to affect that.

    • I don’t think the most productive question before the Court was whether a public body can open with a prayer. The question should have been “what level of care must a public body exercise in order to avoid the appearance of endorsing one religion over another?” Unfortunately, the narrow majority ruled that elected officials have no duty to do that. You can have a policy of sectarian favoritism so long as you’re not bold or stupid enough to openly declare that as your intent. As with all Christian culture war triumphalism, this will come back to bite them, and I will thoroughly enjoy seeing that. Sooner or later a Muslim or perhaps Hindu majority town council will shut out local Christians in the prayer process and they’ll have SCOTUS blessing to do so. They’ll suddenly become big believers in church/state separation.

      • That is what is needed, I think.

        Something that can viably shake the status quo.

      • This actually did happen in 1840’s Massachusetts. Until then that state had a law requiring each town to support a church. (This was before the Civil War and the 14 th Amendment which extended the Bill of Rights to the States and the law dated to pre-Revolutionary times ). Around that time a few suburbs of Boston voted to fund a Unitarian Church rather than a Congregationalist Church. Within a few years the Congregationalists had the law repealed.
        All of New England had School prayer laws until the Supreme Court School Prayer case in the 60’s. In NH, where I lived it was the Protestant Version of the Lord’s Prayer. My Catholic friends did not like this. Jewish students were allowed to remain silent. It is interesting that while the East Coast states and the South had school prayer before the 60’s almost every Midwestern and Western state had bans on School prayer in their state constitutions at that time. Probably in response to laws like NH.