05/05/2014 02:22 pm ET Updated Jul 05, 2014

Supreme Court Rules in Town Board Prayer Case

The U.S. Supreme Court in a divided 5-4 decision held that a town board that began meetings with a prayer given by clergy selected from a local directory of congregations does not violate the Establishment Clause. (Town of Greece, New York v. Galloway). The majority opinion concluded that legislative prayer has a long history, going back to the first Congress, and is constitutionally acceptable. The majority affirmed language in a prior 1983 opinion, Marsh v. Chambers, that "the content of the prayer is not of concern to judges" if "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other faith or belief." The 1983 decision allowed Nebraska to use public funds to compensate chaplains who offered prayer at the start of legislative sessions. Prayers need not be nonsectarian, given the potential censorship of religious speech and the difficulty of determining what is or is not nonsectarian. Furthermore, the First Amendment is not a matter of majority rule. Historically, invocations have been utilized to lend gravity to the situation and are part of the nation's heritage.

Three justices concluded that a legal decision concerning prayer must consider the setting in which it occurs and the audience to whom it is addressed. The principal audience for these invocations is the lawmakers themselves and there is no requirement of public participation or indication that decisions might be influenced by agreeing to this prayer opportunity. This prayer is delivered in an opening ceremony and not while policymaking is undertaken. These justices distinguished the current situation from a previous decision that disapproved an invocation at a high school graduation. Two Justices wrote that the prayer in the present case is unlike the coercive religious establishments that existed at the founding of the nation.

Justices Kagan, Ginsburg, Breyer, and Sotomayor dissented, stating that "the Town of Greece's prayer practices violate [the] norm of religious equality... ." While indicating support for Marsh v. Chambers, the dissent distinguished the current case. Here the town meetings involve participation by ordinary citizens with sectarian prayers directed to them. Additionally, the town did not seek out non-Christian religions to participate in invocations. Government should not "align itself with, and [place] its imprimatur on a particular religious creed." The dissent emphasized the distinction between legislative sessions and town board meetings where ordinary citizens might appear and petition. While stating that "none of this means that Greece's town hall must be religion or prayer-free," it is critical "to treat every citizen, of whatever religion, as an equal participant in her government." The majority overlooks the distinction between legislative prayer and town Board meetings and the two distinctive audiences, legislators and citizens, to whom the prayers are addressed. Furthermore, only Christian clergy are offering prayer.

It is noteworthy that both majority and dissenting opinions cite Marsh v. Chambers. That decision appears unlikely to be overturned although its application is subject to interpretation. Nor does it appear that the majority is willing to constitutionally expand public prayer into non-legislative settings, particularly public schools. The majority decision's citation of history and tradition give support to what some commentators have termed "secular religion." Doubtless opponents and proponents of public prayer will find something to criticize in this decision. All the justices appear to support some measure of religion in the public arena although they disagree concerning how it should be expressed.