Back to the Past

May 5, 2014
Guest Post
* Americans United represented the plaintiffs in Town of Greece, with Legal Director Ayesha N. Khan serving as lead counsel.
This morning, by a 5-4 vote in Town of Greece v. Galloway, the Supreme Court upheld a town council’s practice of opening its meetings with predominantly Christian prayers.
It did not matter to the Court’s majority that approximately two-thirds of the opening prayers had expressly Christian references, such as “Jesus,” “Christ” and “Your Son.”
Nor did it matter to the majority that the ministers who gave the prayers typically directed them toward the citizens attending the prayers, often asking them to participate.
Nor did it make a difference that the prayers took place in a small council chamber, often attended by less than a dozen town residents who would have to plead requests for permits and variances to council members who could easily see whether the residents took part in the prayers.
The principal ground for this ruling was the majority’s conclusion that such prayer practices were common in 1789, when Congress approved the First Amendment.
The majority paid no heed to how drastically American society has changed in the two-and-a-quarter centuries that have passed since then. We are no longer a nation where nearly everyone professes to be a Christian. More and more of us identify as atheists and agnostics, Jews and Muslims, Buddhists and Wiccans, or members of a litany of other faiths.
To be sure, there are limits to the majority’s backward-looking ruling. At least six members of the Court appear to agree that sectarian prayers would not be permitted in various other governmental contexts, such as court hearings, naturalization ceremonies and elections. The ruling reaffirmed that prayer continues to be unconstitutional in the public-school context.
The Court’s opinions suggest that the ruling may also be inapplicable to adjudicative bodies, such as zoning boards. And the Court made clear that members of municipal councils may not direct audience members to participate in prayers, intentionally discriminate along religious lines in deciding who may give the prayers or maintain prayer practices that seek to convert or denigrate religious minorities.
Yet these limits are of small solace. Today’s majority, concurring and dissenting opinions illustrate how far the members of the Court have moved away from protecting strict separation between church and state in recent decades.
When the Court upheld the presentation of nonsectarian prayers at meetings of state legislatures in Marsh v. Chambers (1983), three members of the Court dissented. But today, no member of the Court was willing to take the position that Marsh was wrongly decided.
Nor did any member of the Court argue that no opening prayers at all should be permitted at the municipal level of government, despite drastic differences between local and state governmental bodies and proceedings, and despite the fact that at least one dissenting judge on a federal appellate panel expressly advocated for such a result.
It may be generations before the Court’s jurisprudence on governmental prayer catches up to the religious diversity of America’s modern pluralistic society.