“God save the United States and this honorable court,” intoned the United States Supreme Court marshal yesterday to formally begin the Court’s oral arguments in a case arising from a New York town’s decade-old tradition of opening its town council meetings with a prayer.
That standard recitation which opens every session of the Supreme Court represented an awkward start for the respondents in Town of Greece v. Galloway, a major case that could set the future boundaries for religious expression by government bodies and officials. At issue is the Establishment Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion.”
Two citizens of the Town of Greece sued because they felt the overwhelmingly Christian prayers offered prior to every council meeting essentially “coerced” them into participating in the religion. Their concern was that they didn’t want to risk irritating council members who could render unfavorable actions against them.
Unfortunately, the justices didn’t hint at any broad, clarifying rule they might issue in the face of a body of confusing and often contradictory legal precedent. The best the justices could do is point out how each of the Establishment Clause’s judicial tests previously used by the Court are more or less nonsensical.
For example, when the lawyer for the concerned citizens asserted that only town prayers which would be acceptable to people of all faiths should be permissible, Justices Samuel Alito and Antonin Scalia scoffed. It’s unfeasible to engineer a prayer that would appease everyone, asserted the Justices — imagine a prayer addressed to Jesus, Allah, Yahweh, Waheguru, Satan, an Athiest void, etc. The lawyer admitted the task was virtually impossible.
But then again, the challengers’ true intention may actually be to get the Court to embrace a theoretical legal rule which technically permits government prayer but has the real-world effect of banning it.
That’s a shame. For most Americans, hearing a prayer from time to time isn’t really a big deal. If you’ve ever been to a friend’s wedding, a loved one’s funeral or a Christian family’s dinner table, odds are you’ve been subjected to a group prayer without feeling “coerced” into practicing a religion.
The drafters of the First Amendment didn’t seem to think government prayer was a big deal either. They started their own legislative sessions with a prayer, and that tradition has persisted for more than two centuries. That’s why the Department of Justice submitted a brief defending the town’s practice on behalf of the United States Government.
In a rare moment of clarity during the otherwise abstract questioning, Justice Elena Kagan observed that “the Court lays down these rules and everybody … [gets] unhappy and angry and agitated in various kinds of ways … And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”
The Justices could literally rule dozens of unpredictable ways in the case, but one thing is guaranteed — some group of people is going to end up unhappy, angry and agitated.
