On November 6, 2013, the United States Supreme Court heard arguments on one of the most vexing issues under the First Amendment to the United States Constitution — When does the Constitutionally required governmental allowance of religious practices cross the line into Constitutionally prohibited governmental endorsement of religion? The specific issue in the case is whether the town council of Greece, New York, should be allowed to continue opening its sessions with prayers having a distinctly Christian point of view. The decision in the case won’t come for months, but I am going to predict the outcome of that case, something I have never done before. When the decision is released, I will review how close I came to predicting the actual result.
During the arguments, the attorney for the two citizens of Greece who complained about the Christian prayers asked the Court to declare that Greece can only offer prayers that are acceptable to everyone but atheists and polytheists. I predict the Court will not determine what should be in a public prayer. First, parsing prayers to see whether they pass muster with persons of disparate faiths would put the government directly into the business of regulating both speech and a person’s practice of his or her religion, both of which the First Amendment says its cannot do. More important, no conceivable prayer is acceptable to all the world’s believers, even if for some reason we were to leave out atheists and polytheists. Even a prayer to a generic “creator” is contrary to the beliefs of many Buddhists that the universe was never created and that there is no God. A prayer to a “Heavenly Father” won’t cut it for someone who believes in the Mother Goddess or denies the existence of heaven. So we aren’t going to have prayer guidelines as a result of this case.
I also predict that the Supreme Court will not bar town councils from opening their sessions with prayer. 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 prior cases, the Court has recognized that history. The current Court, which opens its own sessions with a prayer that “God save the United States and this honorable court,” is not about to reverse itself on that issue.
So if the Supreme Court will not outlaw prayers and will not mandate acceptable prayers, how will it resolve the claim that sectarian governmental prayers are effectively endorsing a particular religion, in violation of the First Amendment? 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. So, if a citizen believing in the redemptive power of mushrooms wants to invoke the spirit of the Great Mushroom at a meeting of the town council, that person will have to be given a reasonable opportunity to do just that. That is what it means to live in a pluralistic country, founded on religious tolerance and personal freedom.
Perhaps when members of the Church of Satan, professed atheists and others with non-traditional beliefs begin opening governmental meetings we will all start to recognize how truly diverse we have become and begin to curb our urge to pray aloud in public, something Jesus recommended a long time ago. Matthew 6:5-6. Eventually we may come to see that for governmental meetings and other public occasions, a respectful moment of silence, during which we can call upon whatever power is most meaningful to each of us, will do just fine. Stay tuned.
Donald 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.