By Katherine G. Robertson
Alabama Political Reporter
On Monday, May 5th, the United States Supreme Court upheld the practice of Greece, a small town in the State of New York, to open monthly town meetings in prayer. The two plaintiffs (one a Jewish woman and the other an atheist woman) filed suit in a New York federal district court complaining that the prayers were ‘offensive,’ ‘intolerant,’ and were in violation of the Establishment Clause of the U. S. Constitution. The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The plaintiffs argued that the town’s pattern of having Christian clergymen lead the prayer was, in effect, establishing Christianity as the preferred religion. Similar to the Alabama Legislature and nearly every other state legislature in the union, the town board of Greece invites an unpaid, volunteer clergyman to deliver the prayer before their meetings. Because the town is filled with predominantly Christian congregations, the majority of the volunteer clergymen have been Christians.
The U.S. District Court held that there was no violation of the Establishment Clause because leading the prayer was not exclusively open to Christians. The court also concluded that the prayers did not have to be nonsectarian and that references to Jesus were acceptable as long as such references were not used for purposes of proselytizing or disparaging any other faith or belief. On appeal, the Second Circuit Court of Appeals reversed, concluding that, in light of the circumstances, the town’s practice appeared to endorse Christianity. The U.S. Supreme Court, relying primarily on its reasoning in Marsh v. Chambers, reversed the Second Circuit for two reasons: that history supports the conclusion that legislative prayers are compatible with the Establishment Clause; and the Establishment Clause does not require religiously neutral prayer in this context, as long as the opportunity to lead prayer is open to clergymen of all religions. Interestingly, amicus curiae briefs written in support of the town were filed by the Attorneys General of over twenty states (including Alabama) as well as Solicitor General Don Verrilli, on behalf of the United States.
The Court refuted the theory that religious diversity was necessary to render the prayer constitutional and held that the town should not be forced to recruit non-Christian clergy from “beyond its borders.” As for the content of the prayer itself, the Court was unwilling to require that clergymen drop the phrase “in Jesus’ name” or other specific references to a particular faith. [It is worth noting that a Wiccan priestess was allowed to open one of the town’s meetings, invoking the help of the goddess Athena and the god Apollo]. Writing for the majority, Justice Kennedy explained, “[o]nce it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.” Even the Second Circuit agreed that to require a “vague theism” is as much of a First Amendment violation as establishing a “specific creed.”
The jurisprudence established in this case will certainly come as a disappointment to advocates of absolute separation of church and state, but may also be slightly disappointing to advocates of religious liberty. Liberal secularists should be concerned about the Court’s continued distancing from the aggressive Lemon test-a three-part analysis that is unfavorable to nearly any overlap between government and religion-with a bent toward a coercion-based analysis instead. As ScotusBlog’s Lyle Denniston points out, the Court “stop[ped] just short of abandoning a historic barrier to religion in government activity.” If the Court continues in this direction, Establishment Clause violations will become much harder to prove in instances where the government’s act is of a passive nature. The coercion test limits a court’s analysis of an activity to whether or not it is being used by the government to coerce the public to support or participate in the favored religion. In his concurrence, Justice Thomas succinctly summed up the plaintiff’s complaint through the lens of this broader analysis saying “peer pressure, unpleasant as it may be, is not coercion either.”
On the other hand, Justice Kennedy’s heavy reliance on the historic nature of legislative prayer to justify its exception to deeper scrutiny under the Establishment Clause is a fairly narrow win for religious expression through public prayer that does not extend to, for instance, a public school graduation. While undoubtedly a victory, the 5-4 split by the Court on the constitutionality of actions that even the liberal 9th Circuit has upheld provides limited comfort to watchdogs of religious freedom.