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Public piety OK in local government, Supreme Court says

  • McClatchy Washington Bureau
  • Published Monday, May 5, 2014, at 2:22 p.m.
  • Updated Monday, May 5, 2014, at 2:22 p.m.

— The Supreme Court on Monday upheld the authority of town officials to start public meetings with a prayer.

In a 5-4 decision that aligned with popular political practice, the court ruled that the pre-meeting prayers in Greece, N.Y., did not violate the First Amendment’s requirement to keep church and state separate.

“Willing participation in civic affairs can be consistent with a brief acknowledgment of . . . belief in a higher power, always with due respect for those who adhere to other beliefs,” Justice Anthony Kennedy wrote for the majority. “The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.”

The divided ruling effectively retains the status quo, as many legislative bodies including the House of Representatives and the Senate already start their sessions with prayer. The ruling also makes clear that prayers need not be nonsectarian in order to be constitutionally appropriate.

“Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not exploited to proselytize or advance any one, or to disparate any other, faith or belief,” Kennedy explained.

Underscoring the prevailing political sentiment, 34 senators and 85 House members had signed separate briefs endorsing legislative prayers. Only 12 House members joined an opposing brief that urged tighter scrutiny, and no senators did.

Attorneys general from Texas, Idaho and 21 other states supported the town of Greece’s legislative prayer program. No states took the opposing position, and the hour-long oral argument last November left little doubt that a majority of the justices would legally bless the practice.

“Defenders of religious freedom at home and abroad should be encouraged by today’s ruling,” declared Sen. Marco Rubio, R-Fla.

The court’s four liberal justices dissented Monday.

“Greece’s board did nothing to recognize religious diversity,” Justice Elena Kagan wrote, adding that “the town never sought, except briefly when this suit was filed, to involve, accommodate or in any way reach out to adherents of non-Christian religions.”

Daniel Mach, director of the American Civil Liberties Union’s Program on Freedom of Religion and Belief, added Monday that he was disappointed because “town-sponsored sectarian prayer violates the basic rule requiring the government to stay neutral on matters of faith.”

Greece, a town of about 94,000 near Rochester, N.Y., has opened its monthly town board meetings since 1999 with prayers delivered by local clergy and volunteers. During the first nine years, every public prayer was led by a Christian.

Two residents – one a Jew, the other an atheist – sued in 2008. The two, Susan Galloway and Linda Stephens, noted that town residents attending the board meetings for awards ceremonies, zoning actions or other reasons must sit through the prayers that can be quite pointed.

“We acknowledge the saving sacrifice of Jesus Christ on the cross,” one of the public prayers declared. “We draw strength, vitality and confidence from his resurrection at Easter.”

Since Galloway and Stephens sued, the town expanded the religions represented, to include a Wiccan priestess and the chairman of a local Baha’i temple. Nonetheless, an appellate court ruled last year that the town’s prayer program, in the eyes of a “reasonable observer,” would be “viewed as an endorsement of a particular religious viewpoint.”

In a key 1983 Nebraska case, the Supreme Court decided that opening legislative sessions with prayers didn’t violate the First Amendment. Under this earlier ruling, legislative prayer is blocked only if the government acts with “impermissible motive” in selecting prayer-givers or if it uses the prayers to advance a particular religion or denigrate another.

“We know it’s a contentious issue,” David Cortman, senior counsel for the Alliance Defending Freedom, acknowledged Monday, but “we are certainly thrilled that the Supreme Court has once again reaffirmed Americans’ freedom to pray, and to pray without censorship.”

The 20-year-old conservative organization helped defend the town’s prayer practices, and its leaders said Monday they would soon start a “national campaign” to inform other cities and municipalities about the court’s pro-prayer ruling.

Though Kennedy said it’s uncertain how many legislative bodies already open with prayers, he emphasized the practice has been well established. Members of the First Congress provided for the appointment of a chaplain “only days after approving language for the First Amendment,” he noted, and both the House and the Senate still employ chaplains.

Conservative Justices Clarence Thomas and Samuel Alito wrote separate concurring opinions, with Justice Antonin Scalia joining Thomas in arguing that only active “coercion” would violate the First Amendment.

While far shorter than Kagan’s 25-page dissent, Justice Stephen Breyer added his own five-page dissent, likewise emphasizing the town’s predominantly Christian prayers. About two-thirds of the town’s prayers over the course of a decade invoked the terms “Jesus,” “Christ,” “Your Son” or “the Holy Spirit,” the dissenters noted.

“The town made no significant effort to inform the area’s non-Christian houses of worship about the possibility of delivering an opening prayer,” Breyer wrote.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10.

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