Supreme Court upholds right of governments to pray during meetings

05/05/14 Janelle Irwin
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Tags: Stetson, SCOTUS, Religion, First Amendment, freedom of religion, separation of church and state, Supreme Court

A town in upstate New York will be allowed to continue its longtime practice of praying before government meetings after a divided U.S. Supreme Court ruling Monday. Louis Virelli is a professor of constitutional law at Stetson University College of Law in Gulfport, FL. WMNF spoke with him about the ruling that the town of Greece, NY does not violate the First Amendment.

The 5-4 decision also noted that most of the town’s religious congregations are Christian and that the city should not be obligated to look outside its borders to obtain religious diversity during meetings. Two residents of Greece, NY challenged the invocations arguing they only represented Christians.

"The way I would describe it is that there's two ways to look at the case that was before the court. The way you frame it, like most things in the law, have some impact on how you feel it should come out. For example, this case is supposed to not be Marsh v Chambers, which is a case from several decades ago that dealt with legislative prayer generally and upheld it. The town of Greece case is, under one formulation of the case, about the policy of the legislature in permitting prayer before meetings and having a practice, or a track record, that is universally Christian. The only people praying at these meetings are Christians. The court, at least the majority of the court, focused on the policy; that is the fact that the town of Greece doesn't preclude other denominations of presenter or preacher from appearing but that the town really only provides them with Christian speakers. If you go prayer by prayer then I think you have a different view of the matter because many of the prayers invoke Jesus and the Holy Spirit and other specifically sectarian things that we would think of as relatively narrow, I think, and as being associate with particular denominations."

Part of the opinion pointed out that there was, at some point after the two respondents complained to board members in Greece, that there was a Jewish rabbi and a Wiccan priestess who came in and gave an invocation. Is that any defense for the city, that they did that after somebody said something?

"Let's put it this way. I would hope not in the sense that I don't think the court is persuaded by the attempt, the post complaint attempt of the town to appear to be more inclusive. The question that the court took up is; does this practice by the town of Greece constitute basically proselytizing or some sort of coercion of the people in the gallery. He said no for several reasons, one of which is that it was directed at the legislators not the members of the public. So that's really an important distinction. If they feel as if there is a Christian slant, if you will, if there's a sort of a Christian portion or leaning towards the proceedings, that effects their rights under the establishment clause of the First Amendment to the Constitution in a significant way. Justice Kennedy says, 'no, these prayers are not being directed at the gallery, they're being directed at the legislators.' Justice Kagan, in her defense, says 'well, they are standing there with their backs to the legislators addressing the audience.' Justice Kennedy responds, not directly but the way this went, Justice Kennedy point is 'none of those folks are required to stay during that portion and none of them are singled out.'"

One of the 'asks' in this case was that any invocation that is given during these meetings only have reference to a generic 'god' and not have any sort of sectarian undertones. In the opinion it says that it's doubtful that consensus could be reached as to what qualifies as a generic or non-sectarian prayer. Is that, the decision in this, is that reasonable?

"It's not unusual for courts to take positions like that. To say this kind of line drawing on a prayer by prayer basis is not something the federal courts want to be involved in when they're deciding a constitutional matter."

Is this decision something that could potentially have broader implications as far as religion in schools, religion in other types of government settings? Anything like that? Would it set some sort of precedent?

"I'm always reticent to make that prediction, right? Because any prediction is sure to go wrong on some level. I think, my first instinct is no. In the sense that this case could be analogized to Marsh v Chambers, which is sort of a long standing precedent permitting this kind of prayer. In that regard, the specific legislative prayer did not permit, for example, the legislature to say 'we're going to open with a Christian prayer.' I don't think the court as currently composed or any court in recent memory would reach that conclusion, that it was okay to do that. If we read this case in the context of the legislative prayer precedent, then I think it can be read narrowly and applied narrowly. If, however, we take it from the point, sort of the other end which is the court said the content of the prayer doesn't matter. The content of an individual prayer doesn't matter, then that has potential application over a wide range of contexts. The good news, for people who are concerned about that is that the court has already shut that door in several places. For example, in school prayer. Lee v Wiseman is the case where the court upheld, or struck down a prayer at a school graduation with the idea that you weren't allowed to...students weren't allowed to leave."

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