On Wednesday, the Supreme Court heard a case about prayer at public governmental meetings. The Greece, N.Y. case, the first major church-state dispute to go before the Supreme Court in nearly a decade, could be a vehicle to test the current justices’ views on whether practices seen as an official “endorsement” of a religion can give rise to a valid legal claim.
According to RNS, the big question is how to regulate the content of a civic prayer without either infringing speech or regulating religion, even if the “religion” being promulgated is a secular version that offends no one.
The United States in this case, represented by Deputy Solicitor General Ian H. Gershengorn, took the town’s side, arguing that it’s not government’s job to parse the language of prayer and that the nation has a long history of legislative prayer.
Douglas Laycock, representing the women who filed suit against the town, proposed a different approach to such prayer. Government should ask clergy to stay away from themes on which believers disagree, refrain from asking for audience participation and separate the prayer from the part of the meeting where the legislative body makes decisions or enacts law.
“We’re saying you cannot have sectarian prayer,” Laycock said.
His proposal did not seem to please Justice Anthony Kennedy, known as the court’s swing vote, who expressed discomfort with any solution that assumed the government would or should have a say in the content of an invocation.
It “involves the state very heavily in the censorship, and the approval or disapproval of prayers,” Kennedy said.
The so-called endorsement test has caused significant controversy since it was laid out by former Justice Sandra Day O’Connor about three decades ago in a concurring opinion in case over a Christmas creche in Rhode Island. She was in the courtroom Wednesday as the new case was argued.
Sen. Marco Rubio (R-Fla.) is one of 34 senators to file an amicus brief supporting the town of Greece and said he planned to attend Wednesday’s arguments. “The tradition of praying before meetings of governing or legislative bodies is common all across our country. In fact, it has been meaningful to me in my own career as a public servant,” Rubio wrote in a Fox News op-ed. “In the Florida State House, I often took time with my fellow state representatives to pray for the wisdom and discernment to properly serve our constituents.”
Many official bodies, including the U.S. Congress, open or conclude sessions with prayers. However, those delivering such prayers often speak in general terms about “God,” without mention of Jesus Christ or other specific religious figures or beliefs.
In 1983, the Supreme Court upheld the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a Christian minister. In a 6-3 decision, the court said the prayers delivered by a paid chaplain did not violate the Establishment Clause because they were in keeping with a tradition that extends to the first session of the U.S. Congress.