WASHINGTON — The justices of the U.S. Supreme Court faced the task of drawing a line between permissible religious addresses by private citizens at public meetings and unconstitutional government-sanctioned prayer during Wednesday’s oral arguments in Town of Greece v. Galloway, No. 12-696.
The case stems from a challenge by two Town of Galloway, N.Y., residents — an atheist and an individual who objects to participating in public prayers — to the town board’s informal, unwritten policy of inviting local clergy to deliver a prayer before meetings. Before each prayer attendees of the meeting are asked to stand.
Though the policy allows clergy from any religion, until 2008 the list of invited clergy members featured only Christians and all prayers were Christian, often referring “Jesus” or “Jesus Christ.” After the residents filed suit, the list was expanded to include non-Christian clergy and occasionally non-Christian messages were offered. The town never publicized that the policy was open to all creeds.
The U.S. District Court for the Western District of New York granted the town summary judgment, finding that the policy did not violate the Establishment Clause. But the 2nd U.S. Circuit Court of Appeals disagreed, holding that the policy “conveys to a reasonable objective observer under the totality of the circumstances an official affiliation” with Christianity.
The Supreme Court agreed to take up the case, although the court has traditionally been wary of finding that prayers before legislative meetings, which date back to the time of the Constitution’s drafting, violate the Establishment Clause. But the challengers in this case argue that unlike prayers before Congress or state legislature sessions, town meeting prayers place pressure on those with business before local governmental bodies to participate or face negative consequences.
History vs. the Constitution
The Supreme Court chamber where arguments took place illustrates some of the issues in the case: the room is adorned with gilded gates etched with symbols that include stone tablets bearing the Ten Commandments, and before each session the audience stands and the court’s crier says, “God save the United States and this Honorable Court.”
Thomas G. Hungar, a partner in the Washington office of Gibson, Dunn & Crutcher LLP, represented the town. He argued that the historical acceptance of legislative prayers reflects that fact that the drafters of the Constitution recognized that an individual who attends a legislative meeting is “an adult, and he is expected to be able to disagree with things that he disagrees with and that is not a constitutional violation.”
Chief Justice John Roberts Jr. wondered if historical acceptance creates a permanent constitutional standard.
“We’re not going to go back and take the cross out of every city seal that’s been there since, you know, 1800,” Roberts said. “But it doesn’t mean that it would be okay to adopt a seal today that would have a cross in it, does it?”
“Not necessarily,” replied Hungar, but “the history of legislative prayer [goes] back to the very framing of the First Amendment.”
Justice Anthony Kennedy asked if the town relied too much on historical practice.
“The essence of the argument is ‘We’ve always done it this way,’” Kennedy said. “It seems to me that your argument begins and ends there.”
But Hungar disputed that.
“The core of Establishment Clause concern is coercion or conduct that is so extreme that it leads to the establishment of a religion because it is putting the government squarely behind one faith to the exclusion of others,” he said. “That’s clearly not what’s going on here.”
When Deputy Solicitor General Ian H. Gershengorn argued as amicus in support of the town, Justice Sonia Sotomayor put the coercion issue straight to him in a hypothetical.
“If the Chief Justice got up at the beginning of this session and said ‘All rise for a prayer,’ would you sit down?” Sotomayor asked.
“Whether I would sit or not, we don’t think that that would be constitutional,” Gershengorn said.
“So why do you think that someone who is sitting in a small room [at a town meeting] wouldn’t feel coerced to stand?” Sotomayor asked.
Kagan painted the issue more broadly.
“When we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American,” she said. “And what troubles me about this case is that here a citizen is going to a local community board [and] being forced to identify whether she believes in the things that most of the people in the room believe in.”
Anti-Establishment vs. Free Expression
Douglas Laycock, a professor at the University of Virginia School of Law in Charlottesville, Va., argued that the town prayer policy is coercive to residents who attend meetings in part because it “doesn’t instruct the chaplains keep [their] prayer nonsectarian.”
“So what changes do you think would need to be made that would bring this within the constitutional boundary?” asked Justice Ruth Bader Ginsburg.
“We think the town needs a policy,” Laycock replied. “The policy should give guidelines to chaplains that say: ‘Stay away from points in which believers are known to disagree.’ And we think the town should ameliorate coercion [by telling] clergy: ‘Don’t ask people to physically participate.’”
Scalia wondered if that rule would step on others’ constitutional free expression rights.
“People who have religious beliefs ought to be able to invoke the deity when they are acting as citizens … so long as all groups are allowed in,” he said.
And Kagan wondered if any court-issued standard would cause more problems than it would solve.
“I think it’s hard because the court lays down these rules and everybody thinks that the court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways,” she said.
“There are people who distort [and] misunderstand your decisions,” Laycock said. “But keeping government neutral as between religions has not been a controversial proposition in this court.”
A decision is expected later this term.
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