A Return to Common Sense

Prayers to God for wisdom in public deliberations are safe once again: The U.S. Supreme Court held May 5 that the town of Greece, N.Y., could continue its practice of opening the meetings of its town board with a prayer.

The practice of commencing public deliberations with prayer has a deep historical pedigree in the United States, starting with Congress, which has a paid chaplain. Moreover, that practice has adapted over time along with the growing religious pluralism of the nation. Many towns opt for nondenominational prayers. Others, such as Greece, have established rotating prayers among religious groups as a way to reflect both our diversity as well as to recognize the common religious instinct to seek assistance from God.

This is an important case for two reasons: First, the decision confirms the constitutional principle that prayer, even sectarian prayer, is constitutional at such public gatherings. Second, the decision allows municipalities and other government bodies to express the religious diversity of their constituencies without fear of being overruled by a distant court.

As we have discussed before, the appellate court decided against the town not because of discrimination against a particular religion, since there was no evidence the town discriminated against anyone. Rather, the court based its decision on the questionable presumption that Greece should have gone outside its town boundaries to find non-Christians to recite the prayer or should have invited random volunteers to lead the prayer service. The court did not explain how a town would go about identifying people outside its boundaries to give prayers or why these people would accept.

If upheld, the decision would have led to interminable investigations by judges to determine whether the prayers were constitutional. This kind of a ruling would in effect render the practice unconstitutional, as few towns would be worth risking a constitutional case.

The Supreme Court, in a 5-4 decision written by Justice Anthony Kennedy, rejected this approach and returned to common sense. The court noted at the outset that legislative prayer is not only constitutional but has existed since the beginning of the nation. The court’s precedent "stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change."

The fact that Greece had opened its sessions with predominantly Christian prayers, since most of the population was Christian, was of no constitutional significance. The court explicitly rejected the argument that prayers needed to be "nonsectarian" in order to survive challenge and indeed questioned whether a truly nonsectarian prayer could be identified.

The dissent, written by Justice Elena Kagan, tried to make an argument based on feelings of exclusion. Because the prayers were directed not only to legislators, but also ordinary citizens there to conduct public business, hearing sectarian prayers might offend them or convince them that the town was somehow endorsing a particular religion and thereby excluding them. The majority found instead that the true test of constitutionality is coercion, not taken offense: "Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions."

This is a crucial point, as it places the legal analysis where it belongs: on whether government action coerces anyone to believe or not to believe or treats citizens differently based on their participation in prayer. Here, Greece did no such thing.

As Eric Rassbach of the Becket Fund for Religious Liberty, which filed a friend-of-the-court brief urging the court to reverse the appellate decision, stated on the day of the ruling: "As a people, we will always have disagreements about religion. But that reality cannot be used as an excuse to banish religious activity entirely from public life. The Founders recognized that prayer is not a trivial matter, but plays a central role in the life of our nation. All the court did today is repeat what the Founders said so many years ago."

That is to say, the U.S. Constitution, ratified 226 years ago next month, prohibits the establishment of religion. Prayers opening a legislative session or deliberative body do not establish religion, even if the prayers are predominantly of one faith.

The Constitution does not require that prayers be so watered down that they can be acceptable to all faiths. To do so, as Justice Samuel Alito advised in his separate concurrence, would render false true religious belief and deny the existence of real faiths of different beliefs across the country.

Gerald J. Russello is a practicing attorney and editor of The University Bookman.