Legislative prayers, the Supreme Court’s self-created quagmire

May 30, 2013

Inside the First Amendment
By Charles C. Haynes
When the U.S. Supreme Court declared legislative prayers constitutional 30 years ago, the justices sent a convoluted message to legislatures, city councils and other government bodies:
You may open your sessions with prayer, a tradition that dates back to the founding of the Republic.  But don’t exploit the prayer opportunity “to proselytize or advance any one, or to disparage any other, faith or belief.” (Marsh v. Chambers, 1983)
Since nobody can agree on what that means, Americans have spent the last three decades debating and litigating who gets to pray – and what they can say – without running afoul of the Court’s murky guidance.
On May 20, the Supreme Court agreed to hear a case, Town of Greece, NY v. Galloway, which may finally clear up some of the confusion surrounding the constitutionality of saying prayers at the opening of a government meeting.
For years, the Town Board in Greece, New York arranged for local clergy to begin the board’s public meetings with prayer. Although the town occasionally invited non-Christians to pray, the vast majority of the prayers were from the majority faith.
Last year, the U.S. 2nd Circuit Court of Appeals ruled the town’s prayer policy unconstitutional because “the process for selecting prayer-givers virtually ensured a Christian viewpoint.”
In their appeal to the Supreme Court, town officials argue that there was no discrimination in determining who got to pray – and nothing was done to use the prayer opportunity to promote or denigrate any religion.
Whether the Greece Town Board wins or loses, the Court’s decision in the case may provide some answers to the messy questions the Court left unanswered 30 years ago in Marsh:
Must government officials require all invocations to be non-sectarian prayers so as to avoid proselytizing? Does it pass constitutional muster to rotate prayer-givers among local faith communities? If most of the prayer volunteers are Christian, is the town or city required to recruit other faith representatives to ensure a greater variety of prayers?
Of course, attempting to answer these questions will likely lead to more questions, such as if and when to include the one fourth of the U.S. population with no religious affiliation.
As if on cue, a few days after the Supreme Court agreed to hear the Greece, NY case, an atheist member of the Arizona House of Representatives gave the “daily prayer” by giving a message that wasn’t prayer.
The prayer-free invocation prompted considerable debate, including outrage from a Christian lawmaker who insisted on having two prayers the next day to make up for the missing prayer.
The brouhaha in Arizona illustrates the complexity of the issue before the Supreme Court, a complexity the Court itself created when it ruled legislative prayers constitutional 30 years ago.
Short of reversing Marsh by prohibiting opening prayers at legislative sessions (which this Court is very unlikely to do), the only fair alternative would appear to be a “prayer policy” that includes everyone by rotating among the bewildering variety of faiths and beliefs represented in the most religiously diverse society in the world.
Or the Court could mandate general, universal “to-whom-it-may-concern” prayers that, in the end, satisfy no one (and exclude the nonreligious).
What the Supreme Court must not do, however, is allow any government body to endorse one faith over others by opening meetings with Christian prayers week after week.
If “no establishment” under the First Amendment means anything, it means at least this:
The government may not take sides in religion.
Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C., 20001. Web: www.religiousfreedomeducation.org. Email:chaynes@freedomforum.org.