Religious liberty advocates are hopeful that the U.S. Supreme Court will soon issue a landmark ruling upholding the constitutionality of public prayer in governmental settings. The High Court has agreed to
hear an appeal of a decision by the Second Circuit Court of Appeals regarding public invocations.
The case comes from the town of Greece in suburban Rochester, New York. The lawsuit was filed by the atheist group the Americans United for Separation of Church and State. The plaintiffs are two town residents who contend that invocations offered before meetings of the town council amount to an unconstitutional establishment and endorsement of the Christian religion.
The Second Circuit decision is a curious one. The judges rejected the argument that invocations must be limited to "non-sectarian" prayers. In so doing, the judges concurred with decisions of the 6th, 9th, and 11th
Circuits that "sectarian" invocations are constitutionally permissible.
"We cannot agree...that the Establishment Clause precludes all legislative invocations that are denominational in nature...A state-imposed requirement that all legislative prayers be non-denominational...begins to sound like the establishment of 'an official or civic religion'...Under the First Amendment, the government may not establish a vague theism as a religion any more than it may establish a specific creed."
Nonetheless, the 2nd Circuit ruled that the town's invocation policy was unconstitutional because it had the effect of "affiliating" the government with
Christianity. "We conclude...that the town's prayer practice must be viewed as an endorsement of a particular viewpoint." The town followed a practice of inviting ministers at random from the community who were listed in a local church guide to offer prayers before their meetings.
The 2nd Circuit observed that "Christian clergy delivered each and every one of the prayers for the first nine years of the town's prayer practice, and nearly all of the prayers therefter." The Court ruled that the town had the obligation to go outside the community to ensure
that non-Christian ministers were included among those offering the invocations.
The 2nd Circuit's opinion seems to stand at odds with the lone decision of the U.S. Supreme Court on the subject of governmental invocations. In the 1983 case of Marsh v. Chambers
, the High Court upheld prayers offered before sessions of the Nebraska General Assembly. The Nebraska Legislature had for a number of years employed a Presbyterian chaplain to offer its invocations. The Supreme Court ruled that the invocations were constitutionally legitimate so long as they were not used to "proselytize" on behalf of any particular faith or disparage other faiths.
Attorneys for the Alliance Defending Freedom, the nation's leading Christian legal interest organization, welcome the Supreme Court's decision to hear the Galloway v. Town of Greece
case. "Since this nation's founding, public meetings have been opened with prayers offered according to the conscience of the speaker," says ADF attorney David Cortman
. "There is no legal reason why a town can't do this today with people from within its own community."
"A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn't like," says Brett Harvey, ADF Senior Counsel. "It's perfectly constitutional to allow community members to ask for God's blessing according to their conscience."
Noted legal observer Eugene Volokh says the pending decision will likely establish groundbreaking case law on
the subject of public prayer. "The Court may use this case as a means of reconsidering the 'endorsement test,' under which the Establishment Clause is read as barring government speech that a 'reasonable observer' would see as endorsing or disapproving of a religion."
The "endorsement test" was enunciated by retired Supreme Court Justice Sandra Day O'Connor. Justice Anthony Kennedy
has replaced O'Connor as the swing justice on the Court, and he along with other justices have not subscribed to the "endorsement test."
Religious liberty supporters were cheered by two appellate court decisions issued in March by the 9th and 11th Circuits. In the 11th Circuit case, that court upheld invocations offered before meetings of the city commission in Lakeland, Florida. The 11th Circuit judges reaffirmed their previous position that "Marsh
forbids judicial scrutiny of the content of prayers absent evidence that the legislative prayers have been exploited to advance or disparage a religion."
In the 9th Circuit case, that extremely liberal court upheld the invocation practice of the City of Lancaster. "Plaintiffs would have us order the city to review...the text of every proposed prayer, approving...only those drafts rid of all references to saints, disciples, prophets,
deities, and the like...It would assign to the government the task of coauthoring prayers, precisely what the [Supreme] Court...declared unconstitutional."
The 9th Circuit disagreed with the reasoning of the 2nd Circuit in the Greece
case. "That most [prayers] so far have been Christian is merely a function of local 'demographics and the choices of religious leaders who responded out of their own initiative to the city's invitation.'"
Missouri attorney Michael Whitehead has filed a friend-of-the-court brief in the Greece
case on behalf of the Ethics and Religious Liberty Commission of the
Southern Baptist Convention. In that brief, Whitehead
writes: "Trying to create 'neutral' invocations at legislative meetings harms the free exercise rights of the religious person. A person wishing to give an invocation must be able to pray according to the dictates of that person's conscience without the prayer police scrutinizing the content of that prayer."
We encourage you to be praying for the Supreme Court Justices as they hear this case, with a decision expected during the first half of next year. This case has the promising potential to dismember judicial hostility to religion in the public square.