Roberts Court to Wade into Debate Over Religion's Place in Public Square

May 20, 2013

by Jeremy Leaming

For decades Religious Right activists have cultivated a wobbly narrative, championed by pundits like Bill O’Reilly, of a secular America striving to erase Christianity from the public square.

These activists, such as the Family Research Council and the American Family Association and televangelists like Pat Robertson and the late Jerry Falwell, often blamed the Supreme Court for leading the way.

First, they have argued the Supreme Court yanked prayer and Bible readings from the public schools in the cases Engel v. Vitale and Abington v. Schempp. But neither of those cases did such things. Instead the Supreme Court in those cases prohibited organized religion in the public schools. In other words public school teachers and administrators had to stop leading students in religious activities. Those cases did not outlaw prayer or religion in the public schools; they just found that such activities must be truly student initiated.

There’s also the annual farce dubbed the “war on Christmas,” where, supposedly, secularists roam city halls and public squares demanding the removal of all vestiges of religion. There are also Supreme Court cases involving these clashes between government officials and individuals bent on festooning public spaces with religious and non-religious symbols. The cases can seem a bit absurd, but a takeaway -- if public officials open their public buildings and spaces to say a nativity display they’d better be prepared to open them to displays of other holidays celebrated during the winter and some secular symbols too, like giant candy-canes or snowmen. For too many Religious Right activists, however, it’s not enough to decorate churches and private homes with religious symbols of the holiday season, they must also adorn government buildings with them and if government officials don’t comply they’ll point to a “war on Christmas.”

Then there are government meetings and activities. From coast to coast there are city and town councils and other government bodies that like to open their public meetings with prayer. The use of prayer in government work has a long history. On the federal level, both chambers of Congress open each day with chaplains providing invocations and a marshal opens Supreme Court sessions, with “Oyez, oyez, God save the United States and this Honorable Court.”

As the nation has evolved, however, and become more diverse, unsurprisingly you’ve had more and more people question the use of prayer during government sessions. And here again, you have a ripe opportunity for Religious Right zealots to complain about attempts to force government officials to either forgo prayer altogether at their official functions or mix it up and include invocations from all kinds of religious groups.

The Supreme Court has touched upon prayer during government sessions, and today the Roberts Court agreed to consider a case – Town of Greece v. Galloway – that allows the high court to revisit precedent on government and prayer. The case arises from Greece, N.Y. where Christian prayer has frequently been used to open town board meetings. As The New York Times’ Adam Liptak reports the town’s prayer policy has been in place since 1999 and town officials have said that people of all faiths, including atheists, can offer invocations.

But, as Liptak notes, in practice, the Greece officials’ policy has been found constitutionally suspect because Christian prayer and groups dominate. Last spring, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the town’s practice violated the First Amendment principle of separation of government and religion.

“In practice,” Judge Guido Calabresi wrote, “Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town’s invitation. From 1999 through 2007, every prayer-giver who gave the invocation met this description.”

Calabresi, citing Supreme Court precedent, in particular the high court’s 1983 Marsh v. Chambers and its 1989 opinion in County of Allegheny v. ACLU, found that circumstances must be examined to determine whether government use of prayer passes constitutional muster. For instance, in Marsh, the high court upheld the Nebraska legislature’s use of invocations that eventually only referenced God, largely citing historical use of invocations by the U.S. Congress.

In Allegheny, which involved a First Amendment challenge to a nativity scene in city hall, Calabresi noted, the Allegheny Court “suggested that legislative prayers invoking particular sectarian beliefs may, on the basis of those references alone, violate the Establishment Clause.”

Calabresi said, “As read by Allegheny, Marsh has remained a fixed point within the High Court’s Establishment Clause jurisprudence.” It was not enough Calabresi wrote to look at the N.Y. town’s prayer policy and determine its constitutionality solely on whether the prayer was sectarian or not. “We must ask, instead, whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs.”

In this instance, the Second Circuit found that Greece, N.Y. officials’ prayer policy was employed primarily as a vehicle to promote Christianity, thereby violating the First Amendment, which calls for government to remain largely neutral on matters of religion.

“We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement as of a particular religious viewpoint,” Calabresi wrote. “This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials.”

SCOTUSblog’s Lyle Denniston says, “The Supreme Court’s agreement to review the decision might be interpreted as an indication that the Justices could be preparing to make a major pronouncement on religion in the public sphere, but it also might be understood as an intent to focus solely on the specific facts of the practice as it unfolded in this one community.”

Americans United for Separation of Church and State, which brought the case on behalf of two Greece, N.Y. residents who objected to the exclusive prayer practice, called on the high court to “affirm government neutrality on religion.”

The group’s legal director, Ayesha N. Khan said, “Legislative bodies should focus on serving the community and stay out of the business of promoting religion.”

The Roberts Court, led by a right-wing majority, may have a hard time staying neutral on this matter. Justice Antonin Scalia for instance has said on more than one occasion that he does not believe the Constitution mandates government neutrality toward religion. 

For supporters of the First Amendment principle that calls for a strong, but not total, separation between government and religion, today’s action by the Roberts Court might be a tad disconcerting. The Roberts Court, like it did in Citizens United v. FEC, showed little trouble in setting aside precedent and some federal law to find that corporations have much greater ability to spend freely on elections. It may now be ready to give short-shrift to Marsh or provide it a new reading, one that could give government bodies a lot more say in how to use prayer at official gatherings.