Analysis: At Supreme Court hearing, passions over religion and its rules

WASHINGTON Thu Nov 7, 2013 7:25am EST

1 of 2. Christian clergy members gather outside the U.S. Supreme Court as it hears arguments in the case of Town of Greece, NY v. Galloway, in Washington November 6, 2013.

Credit: Reuters/James Lawler Duggan

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WASHINGTON (Reuters) - When the U.S. Supreme Court talks about religion, all hell breaks loose.

A dispute over an upstate New York town's prayer before council meetings produced an unusually testy oral-argument session on Wednesday that recalled the decades of difficulty Supreme Court justices have had drawing the line between church and state.

Court decisions involving freedom of religion tend to be closely decided with many separate opinions rather than clear-cut majority statements. The case of Town of Greece v. Galloway appears to be headed that way.

In the case brought by two Greece residents who objected to the overwhelmingly Christian prayers at meetings, the justices appeared likely to allow legislative prayer to continue but not ready to offer new guidance for when government might have gone too far in favoring, for example, Christianity over other faiths. The more liberal of the nine justices appeared sympathetic to the challenge while the conservatives who control the court's majority seemed ready to back the town - but not with a single obvious rationale.

At one point during the hour-long session, Justice Stephen Breyer referred to the challenge of setting constitutional rules so people of different religions live "harmoniously together." Not soon after, Justice Elena Kagan asserted that, "Every time the court gets involved in things like this, it seems to make the problem worse rather than better."

Overall, the justices' remarks were more pessimistic than positive regarding a possible consensus. They voiced frustration with the lawyers who appeared before them and with each other as well.

When Breyer asked the town's lawyer if officials could take more steps to invite non-Christians and even people who are not religious to offer the equivalent of a prayer, Justice Antonin Scalia mockingly asked what sort of invocation "somebody who is not religious" could offer. As lawyer Thomas Hungar, representing the town of Greece, began to suggest a chant "of guidance and wisdom," Breyer interjected with some annoyance toward Scalia, "Perhaps he's asking me that question and I can answer it later."


Such have been the tensions over one of America's most enduring dilemmas. The U.S. Constitution guarantees the free exercise of religion while requiring the separation of church and state. Neither dictate is absolute and the court has struggled with religious protections, often leaving lower courts with confusing standards, particularly on the mandate at issue on Wednesday - that government "make no law respecting an establishment of religion."

Retired Justice Sandra Day O'Connor, often a deciding vote on religion during her 1981-2006 tenure, attended the session in the ornate courtroom. She sat, expressionless, in a front-row spectator seat.

The religious makeup of the bench has changed since O'Connor's time. The court has historically been dominated by Protestants but it is now has six Catholic and three Jewish justices. The religious character of the justices, however, is unlikely to control their views. Among the Catholics, for example, are Scalia, a conservative who has voted repeatedly for prayer in public settings, and Sonia Sotomayor, a liberal who seemed more supportive of those challenging the prayer policy in Greece, a suburb of Rochester.

The high court heard the case after the U.S. Court of Appeals for the 2nd Circuit ruled that Greece officials relied on overwhelmingly Christian clergy, appearing to endorse their beliefs. The court noted that prayers at the town's legislative sessions regularly mentioned Jesus Christ and the Holy Spirit. The appeals court differentiated the Greece dispute from a 1983 Supreme Court case allowing non-sectarian prayers in the Nebraska legislature. In that decision, Marsh v. Chambers, the justices relied on the historic nature of legislative prayer.

In key Supreme Court cases since 1983, the justices have focused on whether government might be endorsing a particular religion or coercing people to participate in prayer. In a 1989 case, they rejected a Pennsylvania county's courthouse crèche display and in 1992 they struck down a Rhode Island public school district's prayer at graduations.

In Greece's appeal, Hungar urged the justices to consider America's history of legislative prayer dating to its 18th century founding. The Obama administration filed a brief in support of the town.


Douglas Laycock, a lawyer representing town resident Susan Galloway and other challengers to the Greece prayer sessions, countered that the town's practice "coerces" people who attend meetings to join Christian invocations. Laycock said he was not arguing against non-denominational, inclusive prayer.

"Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus," Justice Samuel Alito insisted. As Laycock hesitated, Alito kept repeating, "Give me an example. ... Give me an example."

Chief Justice John Roberts also was skeptical of Laycock's rationale. "What exactly is coercive in this environment?" he asked. "Having to sit and listen to the prayer?"

To sharp questioning by Justice Anthony Kennedy, who has succeeded O'Connor as a pivotal vote among the nine, Laycock insisted the court could write a rule that would ensure legislative prayers were not exclusively Christian but that did not require excessive screening of prayers by officials.

Laycock disagreed with Kagan's remark that the court seems to be making the law worse rather than better.

"I don't think that's true," Laycock said. "There are people who distort your decisions. There are people who misunderstand your decisions honestly ... But keeping government neutral as between religions has not been a controversial proposition in this court."

(Reporting by Joan Biskupic; Editing by Howard Goller, Amy Stevens and Bill Trott)

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Comments (76)
gendora wrote:
Prayers in any government function such as this should be and always be prohibited; the fact is it is proselytization which is captive prayers. All the members of any function like this can always stand outside in a circle and have a prayer together before entering for a meeting. It really matters to anyone who finds prayer offensive and demands a decorum of oppression to get to business. Do give decorum to anyone’s god, or any god is to disrespect the rights of that individuals. since these meetings are conducted by leaders, the leaders are demanding everyone in attendance follow a prayer. Also religious objections are ignored…

Nov 07, 2013 2:09am EST  --  Report as abuse
Devitrine wrote:
For a truly inclusive and unbiased prayer, the list of religions that would need to be considered is far longer than the justices seem to imagine.

There are hundreds of living religions in the world, the vast majority of which are polytheistic Pagan religions that worship many Gods and Goddesses. There are also many ‘historical’ pagan religions that are currently being revived and practiced once again.

Indeed, Neopaganism is one of the fastest-growing religious trends in both the U.S. and in Britain. The use of the singular term “God” does NOT include polytheists, nor does it include Goddess worshipers. Religions that are excluded by the singular word ‘God’ include Wicca, Hinduism, Asatru, Druidry and many others.

What wording could be used in a prayer to be truly inclusive?

It would need allow for the possibility of many Gods as well as one God or one Goddess, and also allow for the possibility of no gods. It should also allow for the pantheistic possibility of an impersonal supreme divinity that is identified with Nature or the cosmos itself. That is, it would need to come from a position of agnosticism – not knowing and not claiming anything in particular about the nature of divinity.

We can find a good example of such an invocation in the poem Invictus, which includes the following line:

“I thank whatever Gods may be, for my unconquerable soul.”

A prayer addressed to “Whatever Gods may be” would be truly unbiased, because it expresses an agnostic viewpoint about religious matters concerning which there is no certainty to be had. (At least, none that can be proven.)

Also, the plural term “Gods” includes deities of both genders, so it does not discriminate against feminine deities, like the term “God” does. And the plural term ‘Gods’ also includes, of course, the possibility of only one deity. It should be acceptable to polytheists, monotheists, atheists and agnostics alike.

But prayer that is addressed to a singular ‘God’ without allowing for Goddess worship and/or multiple deities — and without allowing for atheism and agnosticism — excludes polytheists, pagans, and pantheists as well as atheists. By alluding so specifically to monotheism, the ‘God’ language clearly establishes one and only one kind of religious viewpoint – while we live in a nation of broad religious diversity. Therefore, it has no place in our government institutions, whether federal, state or local.

Either replace the ‘God’ language with a neutral and unbiased “Whatever Gods may be” — or else forbid the practice of prayer in government settings entirely.

Nov 07, 2013 3:41am EST  --  Report as abuse
amos033 wrote:
This attack lies at the very heart and soul of America. The very reason for our existence as a Nation. Remember it was the Pilgrims who undertook those perilous voyages in wooden ships to escape religous persecutions in England that founded our nation. In those days anyone caught reading a Bible outside a state sponsored Church was immediately sent to prison. Think carefully, Justices, what you are about to decide will greatly affect all Americans.

Nov 07, 2013 3:41am EST  --  Report as abuse
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