The Issue: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.
The argument in plain english:
Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents. Today, in Town of Greece v. Galloway, the Court will hear oral arguments about whether the town’s prayers are constitutional, but its decision could have a wider impact on the law governing the intersection of church and state. Let’s talk about the case in Plain English. For the first eight years after the town started the prayers, all of the people who delivered them were Christian.
The case before the Court today was filed in 2007 by Susan Galloway, a town resident who is Jewish, and Linda Stephens, who is an atheist. They said that the repeated use of Christian prayers made them uncomfortable; in 2008, there were four non-Christian prayers.
. . . A lower court held that the town’s prayer practice violated the Constitution because, taken as a whole, it suggested that the government was endorsing Christianity. That court emphasized that most of the prayers were “uniquely Christian” – referring, for example, to “Jesus,” “Your Son,” or “the Holy Spirit.” And it wasn’t enough for the lower court that clergy from other religions had sometimes offered the prayer; it reasoned that the town had almost always only invited clergy from within the town itself, without making any real effort to let other religions know that they could participate, and it hadn’t reached out to recruit members of other faiths.
. . . Galloway and Stephens argue that the prayers are unconstitutional for two reasons. First, they effectively coerce the town’s residents to participate in the prayers. If you want to participate in local government – for example, when you are looking for a zoning change or trying to get a business permit – you will attend the town council meeting and feel obligated to join in the prayer. This is different from the prayers that the Court approved in Marsh, they reason, because there wasn’t any sign of coercion in that case: Nebraska citizens were just there to watch the proceedings, and legislators “were free to come and go with little comment.” Second, the prayers are “acceptable only to Christians.”
One suggestion was to craft a prayer acceptable to all religions, in oral arguments the court considered this argument, but the National Journal has doubts that is possible:
As part of the oral argument Wednesday, the justices wondered whether there could possibly be one prayer nondenominational enough to be cool with Christians, and, let's say, worshippers of Zeus. They were picking apart the argument of Douglas Laycock, a professor of law and religion at the University of Virginia, who said that prayers could be allowed if they were not sectarian.
"Well, if that is your argument, then you are really saying you can never have prayer at a town meeting," Justice Samuel Alito said. Laycock then tried to defend his position.
The exchange that follows highlights the central problem of the issue: How do you both allow public prayer and be all inclusive? The answer veers into the absurd, dissecting prayers into their least offensive and vaguest components, approving the ones that pass a sniff test, but still implicitly invoke God and therefore will offend someone, somewhere. Justice Antonin Scalia, the staunch Catholic, jumped in wondering whether such a prayer could make devil worshippers happy.
For the record, Lucien Greaves, the communications director of the Satanic Temple, says the answer is no.
"If the question is one of whether or not there can be one public prayer generalized enough to be all-inclusive to every religion, the answer is obviously no," he wrote me via email.
"The discussion regarding some type of all-inclusive public prayer naively assumes one type of religious construct (that of servitude and supernaturalism) while seemingly disregarding not only other religious conceptions, but the presence of those who don't wish to associate themselves with any type of religion whatsoever."
