Public Prayer Case: Will Supreme Court Go Big or Small?

The U.S. Supreme Court heard arguments Wednesday for Town of Greece vs. Galloway, a case addressing the constitutionality of sectarian prayers at a town board meeting. Experts agree that the Court will likely rule in favor of the public prayers, but how it decides the case could be more significant.

The town of Greece, N.Y., was sued by two plaintiffs, Susan Galloway and Linda Stephens, for its custom of inviting religious leaders to begin the town's board meetings with prayer. Most, but not all, of the religious leaders have been Christian. Galloway, a Jew, and Stephens, an atheist, said the sectarian prayers, which sometimes mentioned Jesus, made them uncomfortable.

The Court must decide whether the prayers at the Greece board meeting violate the Establishment Clause of the First Amendment: "Congress shall make no law respecting an establishment of religion ... ."

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In a previous decision, Marsh vs. Chambers (1983), the Court decided that prayers before a legislative session do not violate the Establishment Clause. In that decision, the Court based its reasoning on the fact that the United States has a long history of beginning legislative sessions in prayer, even going back to the first Congress, which passed the First Amendment containing the Establishment Clause.

Three lawyers were questioned during the arguments: one for the town of Greece, one for the plaintiffs and one for the U.S. Justice Department. The Justice Department, in a surprise to some, sided with Greece in the case, arguing that the government would be violating the Establishment Clause if it had the responsibility of determining which prayers were constitutional and which were not.

Some of the justices appeared uncomfortable with continuing with the Marsh standard (if there is a history of prayer it is constitutional), because of the difficulty of applying it consistently, and seemed to be searching for an alternative. Writing for Scotusblog, Lyle Denniston concluded that the Court would likely stick with the Marsh standard because there is no alternative that could get the support of five of the justices.

Ken Klukowski, director of the Center for Religious Liberty for Family Research Council and the author of an amicus brief in the case on behalf of 85 members of Congress, was in the courtroom during the oral arguments. In a Wednesday interview with The Christian Post, Klukowski said he was optimistic that the court would rule in favor of Greece, but was uncertain how the court might rule.

He agreed with Denniston that the Court could rule based upon Marsh, but thought, if it does so, it would strengthen Marsh with some underlying rationale that Marsh currently lacks. He also did not agree with Denniston that there were no alternatives that could get the support of at least five justices.

Another possibility, Klukowski believes, is the Court could use the case to rework, or throw out, the Court's "endorsement test," which says that a government action violates the Establishment Clause if the action appears to endorse or disapprove of religion. If the Court decides to do that, Klukowski said, it would become one of the most significant Establishment Clause cases in Supreme Court history and one of the most consequential cases of the last half century.

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