Policy: Law

Supreme Court wrestles with government prayer issue

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The Supreme Court met Wednesday to hear a dispute over an upstate New York town board's practice of starting public meetings with a prayer.

Town of Greece vs. Galloway doesn't immediately threaten all invocations inside government halls, as the lawsuit argues the prayers have been overwhelming Christian and instead should be replaced by nonsectarian prayers or a moment of silence.

But the case may serve as a test of the ongoing viability of the landmark 1983 Supreme Court case Marsh vs. Chambers, which ruled the Nebraska legislature had the constitutional right to use public money to pay for a chaplain due to the nation's "unique history."

Because the 30-year-old ruling has been widely interpreted by courts regarding prayer in a government setting, the Supreme Court's decision to take up Greece vs. Galloway suggests a desire to give greater clarity to the role of religious expression in public meetings.

The New York case also could give conservative justices the opportunity to jettison legal rules that have tended to rein in religious expression in the public square — such as displays of the Ten Commandments and holiday decorations.

During Wednesday's oral arguments, Justice Elena Kagan summed up the high court's challenge when she said the public often believes that "every time the court gets involved [in public prayer issues], things get worse instead of better."

Those opposing the town meeting prayers argue that — because the public commonly participates in local government meetings much more directly than at legislative meetings at the state or federal level — sectarian prayers can have a coercive effect. A Muslim or Jew, for example, who attends a town board meeting to apply for a business license may feel intimidated or coerced if they're asked to stand while a Christian prayer is read, the argument goes.

Justice Antonin Scalia raised questions about the coercion argument because the public isn't forced to pray and is free to decline to participate.

But Douglas Laycock, an attorney representing the two woman who filed the lawsuit against the town, said it's coercive because "it is impossible not to participate without attracting attention to yourself."

"And moments later [after a prayer] you stand up to ask for a group home for your Down syndrome child or for continued use of the public access channel or whatever your petition is, having just, so far as you can tell, irritated the people that you were trying to persuade," he said.

Scalia suggested that because municipal boards are made up of ordinary people "acting as citizens," who are not full-time "judges or as experts in the executive branch," they should be able to pray at public meetings as they see fit.

Thomas Hungar, an attorney representing the town, said the town board prayers are consistent with the Constitution's Establishment Clause, which prohibits state-sponsored religious activity.

"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, and that's clearly not what's going on here," he said.

Justice Anthony Kennedy, considered to be the swing vote on the case, asked several questions to the lawyers representing both sides.

The town of Greece opened every town meeting from 1999 through 2007, and again from January 2009 through June 2010, with a Christian-oriented invocation. In 2008, after residents Susan Galloway and Linda Stephens complained, four of 12 meetings were opened by non-Christian prayers.

The two residents filed suit and a trial court ruled in the town’s favor, finding that the town didn't intentionally exclude non-Christians. It also said that the content of the prayer wasn't an issue because there was no desire to proselytize or demean other faiths.

But a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit said that even with the high court’s 1983 ruling, the practice of having one Christian prayer after another amounted to the town’s endorsement of Christianity.

The high court is expected to deliver a ruling next year before the current session ends in late June.

Associated Press reports were used in this article.

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