WASHINGTON (USA TODAY) – The Supreme Court on Monday narrowly upheld the centuries-old tradition of offering prayers to open government meetings, even if the prayers are overwhelmingly Christian and citizens are encouraged to participate.
The 5-4 ruling, supported by the court's conservative justices and opposed by its liberals, was based in large part on the history of legislative prayer dating back to the Framers of the Constitution.
Defending a practice used by the town of Greece, N.Y., the majority ruled that opening local government meetings with sectarian prayers doesn't violate the Establishment Clause as long as no religion is advanced or disparaged, and residents aren't coerced.
The alternatives, the conservative justices said, would be worse: having government officials and courts "act as supervisors and censors of religious speech," or declaring all such prayers unconstitutional.
"As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of 'God save the United States and this honorable court' at the opening of this court's sessions," Justice Anthony Kennedy wrote.
Justice Elena Kagan wrote the principal dissent for the court's liberal bloc, arguing that the intimate setting of local government meetings, the participation of average citizens and the dominance of Christian prayer-givers put the policy out of bounds.
"When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another," Kagan said. "And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines."
The long-awaited ruling came seven years after two women -- a Jew and an atheist -- took the town to court, and six months after oral arguments in November.
SEVEN YEARS IN COURT
The legal tussle began in 2007, following eight years of nothing but Christian prayers in the town of nearly 100,000 people outside Rochester. Susan Galloway and Linda Stephens took the board to federal court and won by contending that its prayers – often spiced with references to Jesus, Christ and the Holy Spirit – aligned the town with one religion.
Once the legal battle was joined, town officials canvassed widely for volunteer prayer-givers and added a Jewish layman, a Wiccan priestess and a member of the Baha'i faith to the mix.
The two women contended that the prayers in Greece were unconstitutional because they pressured those in attendance to participate. They noted that unlike federal and state government sessions, town board meetings are frequented by residents who must appear for everything from business permits to zoning changes.
While the court had upheld the practice of legislative prayer in the past, most recently in a 1983 case involving the Nebraska Legislature, the case of Town of Greece v. Galloway therefore presented the justices with a new twist: mostly Christian clergy delivering frequently sectarian prayers before an audience that often included average citizens with business to conduct.
In the end, five justices said those facts didn't make what the Greece Town Board did unconstitutional, while four others said they did.
"The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech," Kennedy said. "Once it invites prayer into the public sphere, government must permit a prayer-giver to address his or her own God or gods as conscience dictates."
Not so, Kagan argued for the losing side. She said the town's prayers differed from those delivered to federal and state legislators about to undertake the people's business. In Greece, she said, sectarian prayers were delivered to "ordinary citizens" who might feel ostracized or vulnerable if they didn't participate.
"No one can fairly read the prayers from Greece's town meetings as anything other than explicitly Christian – constantly and exclusively so," Kagan said. "The prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths."
Instead of the existing policy, Kagan said the town board should follow the example of Congress' chaplains by giving clergy guidance about avoiding sectarian or divisive prayers.
But several justices were doubtful during oral arguments last year any prayer could satisfy everyone, leaving the court little option but to reiterate its support of legislative prayer or remove it entirely from government meetings – something they clearly did not want to do.
Justice Samuel Alito drove home that point in a separate concurrence Monday in which he called the liberals' dissent "quite niggling."
"Not only is there no historical support for the proposition that only generic prayer is allowed," Alito said, "but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder."
THREE DECADES OF CONTROVERSY
The court's 30-year-old precedent, Marsh v. Chambers, upheld the Nebraska Legislature's funding of a chaplain who delivered daily prayers. Chief Justice Warren Burger ruled then that such prayers were "part of the fabric of our society." The decision prohibited only those prayers that take sides by advancing or disparaging a particular religion.
Since Marsh, backers of more church-state separation had made modest gains. In 1984, Justice Sandra Day O'Connor's "endorsement test" established that every government practice must be examined to determine whether it endorses one religion. In 1989, the court ruled that a Christmas crèche display on a courthouse staircase went too far by endorsing Christianity and brought forth O'Connor's "reasonable observer" test.
The current court agreed to consider the case following a federal appeals court's ruling against the town. Judge Guido Calabresi of the 2nd Circuit Court of Appeals had said its actions "virtually ensured a Christian viewpoint" and featured a "steady drumbeat of often specifically sectarian Christian prayers."
The case hinged on these words from the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." That has come to be known as the Establishment Clause.
The Obama administration came down forcefully on the town's side – most notably because both houses of Congress have opened with prayers since 1789. But the prayers delivered there these days are far less sectarian than those heard in churches, temples and synagogues.
Most state legislatures open their sessions with a prayer, nearly half of them with guidelines. Many county legislatures open meetings with a prayer, according to an informal survey by the National Association of Counties. National data on prayer practices at the city, town and village levels do not exist.
The Supreme Court cracked down on prayer in schools in the 1960s, ruling against Bible readings, the Lord's Prayer or an official state prayer.
In Lemon v. Kurtzman, a 1971 case involving religion in legislation, the high court devised what became known as the "Lemon test." Government action, it said, should have a secular purpose, cannot advance or inhibit religion and must avoid too much government entanglement with religion.
Then came Marsh, in which the court gave a green light to legislative prayer that does not advance or disparage any faith.
Kennedy said Monday's decision follows in that spirit.
"The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce non-believers," he said.