The Town of Greece got some national attention Wednesday as a case about prayers said before public meetings got a hearing before the U.S. Supreme Court.
It’s been three decades since the Supreme Court last touched the issue of public prayer at government meetings. So the justices had plenty of areas to probe in their hour of questioning. And they wasted no time doing so. Justice Elena Kagan led off, interrupting the town’s lawyer moments into his argument to ask whether a prayer openly acknowledging Jesus’ resurrection would be constitutional.
In a series of hypothetical questions to lawyers for the town and the plaintiff, several justices tested the questions of whether any public prayer is coercive…whether and how it can be regulated by town officials without violating the First Amendment…and whether it’s possible to craft any sort of meaningful prayer that would satisfy those of any religion, or no religion at all.
Justice Antonin Scalia was especially combative, at one point playing devil’s advocate by asking the plaintiff’s lawyer, Virginia law professor Douglas Laycock, how devil worshippers could be handled in a public prayer setting.
Back in 1983, the last time the Court addressed these issues, the case came from Nebraska, where a state lawmaker challenged the use of a paid chaplain in the legislature. None of the current justices were on the court when it ruled in favor of Nebraska in what’s called the Marsh case.
Representing the town, Thomas Hungar of the Alliance Defending Freedom argued that the Marsh test should still apply. Outside the court after the argument, he dismissed concerns that the prayers might make some people uncomfortable.
"The Supreme Court has repeatedly held that the fact that someone might object to a particular practice or be made uncomfortable is not the constitutional test. What we're talking about is the establishment clause and whether the government is establishing a particular religion. Here, the Town of Greece practice is open to people of any religion or no religion if they choose to give an invocation."
None of the justices seemed eager to use Marsh as precedent in this case.
Laycock argued that these circumstances are different, because citizens often have to appear before a town board for such matters as zoning permits. The justices explored what constitutes coercion - Justice Sonia Sotomayor asked deputy US Solicitor General Ian Gershengorn, appearing in support of the town, whether anyone would stay seated if the chief justice began the court session by saying, “all rise for a prayer.”
For the plaintiffs, Laycock acknowledged that his constitutional ideal would be a complete separation of prayer from public life.
"Then those who want prayer could pray however they want, and whatever faith tradition they want , as intensely religious at they want and those who don't want to pray wouldn't have to, but the court's not there, and that's not our tradition ."
Tradition played a big role in the arguments, as justices and lawyers reached back to the constitutional conference in search of an understanding about the role prayer has played in public life over more than two centuries.
For the first court with no protestants on the bench, the question of the changing religious makeup of America played a big role. Justice Sotomayor: ' What we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the Court gets involved like this, it seems to make the problem worse not better.'
Justice Scalia pressed Laycock on the question of how to be fair to citizens for whom prayer is an important part of daily life…asking whether it’s discriminatory to tell them their prayers aren’t welcome in the context of a town meeting. Outside the court, Hungar says his group agrees and that's part of what made the case from Grece appealing:
"The timing was right for Greece's case to go to the Supreme Court because there has been his campaign by people who want to exclude all vestiges of religion from the public square to try and coerce towns into abandoning these practices and so there have been enough cases on this issue that it was time for the Supreme Court to get into it. "
On the side of the plaintiffs, Laycock agrees the court was eager to take on a case like this…and he says the overwhelmingly Christian nature of the prayers in Greece made it a natural for the court.