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The Decision- Predicting the Supreme Court Prayer Case

By Donald E. Knebel on May 6, 2014 in Civic Blog
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religious-group-400x252Last November, I posted a blog predicting how the Supreme Court would rule in a case challenging the right of the town of Greece, New York, to open meetings of its town board with prayers, most of them with a decidedly Christian viewpoint.  At the time, I promised to report on the accuracy of my predictions once the decision had been rendered.   On May 5, 2014, the Court delivered its decision and it is time to make good on that promise.  Two of my predictions were close to the decision of the Court’s majority and the third prediction was in the ball park, so I give myself a B+ for prescience.  But the decision of the Court, predictable as it may be, is nonetheless troubling.

Prediction 1:  “I predict the Court will not determine what should be in a public prayer.”

By a vote of 5 to 4, the Court declined to determine (or allow government officials to determine) what should be in an acceptable public prayer.  Writing for the majority on this issue, Justice Kennedy wrote:

Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior.  It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.

In predicting this result, I noted that “no conceivable prayer is acceptable to all the world’s believers, even if for some reason we were to leave out atheists and polytheists.”  Justice Kennedy articulated the idea this way:

The difficulty, indeed the futility, of sifting sectarian from nonsectarian speech is illustrated by a letter that a lawyer for the respondents sent the town in the early stages of this litigation. The letter opined that references to “Father, God, Lord God, and the Almighty” would be acceptable in public prayer, but that references to “Jesus Christ, the Holy Spirit, and the Holy Trinity” would not.  Perhaps the writer believed the former grouping would be acceptable to monotheists. Yet even seemingly general references to God or the Father might alienate nonbelievers or polytheists.

In an opinion concurring in this result, Justice Alito wrote:  “It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country.”

Prediction 2:  “I also predict that the Supreme Court will not bar town councils from opening their sessions with prayer.”

By a 5 to 4 vote, the Court refused to bar town councils from opening their sessions with prayer so long as the prayer is not “coercive.”  In predicting that the Court would not reject prayer before such meetings, I noted that “such a result would be contrary to a long tradition in this country, predating the Constitution, of seeking divine guidance when doing the people’s business.”  In support of this prediction, I noted the Court’s earlier decision in Marsh v. Chambers, 463 U.S. 783 (1983), in which the Court had refused to bar prayers before legislative sessions.  In the opinion for the majority,   Justice Kennedy wrote:

Marsh [v. Chambers] stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.  Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.

Prediction 3:  “I predict that the Court will say that governmental bodies can open (or close) their sessions with prayer so long as they provide realistic opportunities to pray for citizens holding a variety of religious beliefs, including none at all.”

The result here is a little more ambiguous.  What the majority did say is this:  “So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”  Justice Kennedy’s opinion also noted:

Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.

These statements, taken together, probably suggest that governmental bodies must allow people within their boundaries to give the public prayers, without discrimination.  Whether that requires a “realistic opportunity” for citizens holding different beliefs to pray will have to await subsequent cases.  But the Court clearly held that legislative bodies have no duty to seek out members of other faiths to give prayers so long as they don’t “discriminate” among clergy within their jurisdiction.

Although the decision of the Court was more or less predictable given its prior cases, the Court’s decision is nonetheless troubling.  All three of the Court’s Jewish members dissented, joining Justice Kagan’s opinion that focused on the almost exclusively Christian content of the prayers.  As she wrote:

From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy. And after a brief spell surrounding the filing of this suit (when a Jewish layman, a Wiccan priestess, and a Baha’i minister appeared at meetings), the Town resumed its practice of inviting only clergy from neighboring Protestant and Catholic churches.

Under the Court’s decision, that practice can continue so long as there are no non-Christian congregations in the town.  And, if say a Hindu temple comes to Greece, the town will still have no obligation to include prayers acceptable to Buddhists, Muslims, Jews and all the other traditions that its residents may follow.  There is something unsettling about that.   Meetings of the town council should not be places for the dominant religion to trumpet that dominance. As Justice Kagan noted:  “[T]he [challenged] prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths.”  But for the reasons that underlie the Court’s refusal to determine the appropriate content of public prayer, the answer to this lack of understanding does not lie in the Constitution or the courts, at least as the Constitution is currently understood.

The answer lies instead in the conscience of those providing public prayers, who must recognize as a simple matter or courtesy that their most deeply-held beliefs can be downright offensive to others in our increasingly pluralistic society.  Nothing in the Court’s opinion prevents people called upon to pray to recognize that fact and conduct themselves accordingly.

Knebel_Don_ppDonald E. Knebel is a partner in Barnes & Thornburg LLP, resident in the Indianapolis, Indiana office. He is a member of the firm’s Intellectual Property Law Department. Mr. Knebel serves as adjunct professor and senior advisor to the Center for Intellectual Property Research at the Indiana University Maurer School of Law. He frequently posts his observations here at Civic Blog. The views expressed do not necessarily reflect the views of Barnes & Thornburg LLP or the IU Maurer School of Law.

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