If a City Council’s Invocation Prayers Are Almost All Christian, Is It Illegal? The Supreme Court Will Soon Decide May 21, 2013

If a City Council’s Invocation Prayers Are Almost All Christian, Is It Illegal? The Supreme Court Will Soon Decide

Just over a year ago, I was celebrating a major court victory that put a stop to virtually non-stop Christian prayers at the city council meetings in Greece, New York. Now, that decision is back up in the air.

Here’s the story (pretty much as I wrote it then): The town of Greece, New York had opened board meetings with prayers since 1999 thanks to Town Supervisor John Auberger. While the invocations could be delivered by representatives of many different faiths, virtually all of the representatives were Christian. They still are (PDF):

In 2008, two residents of the town, Susan Galloway and Linda Stephens, spoke out against this practice. It worked! Non-Christians delivered the invocation at four out of the next twelve meetings. Then, assuming the women were satisfied, the City Council went back to almost-entirely Christian prayers.

Between 1999 and 2010, there were approximately 130 invocations and it appeared that all but four had been delivered by Christians.

Initially, a district court dismissed Galloway and Stephens’ case, saying that the fact that representatives from different denominations were invited to deliver the prayers meant that the town wasn’t pushing Christianity on its citizens.

But last year, the U.S. Court of Appeals for the Second Circuit reversed that ruling (PDF). Victory!

In practice, Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town’s invitation. From 1999 through 2007, every prayer-giver who gave the invocation met this description. In 2008, after Galloway and Stephens had begun complaining to the town about its prayer practice, nonChristians delivered the prayer at four of the twelve Town Board meetings. A Wiccan priestess and the chairman of the local Baha’i congregation each delivered one of these prayers, and a lay Jewish man delivered the remaining two. The town invited the Wiccan priestess and the lay Jewish man after they inquired about delivering prayers; it appears that the town invited the Baha’i chairman without receiving such an inquiry. However, between January 2009 and June 2010, when the record closed, all the prayer-givers were once again invited Christian clergy.

We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint. This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials. We emphasize that, in reaching this conclusion, we do not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case.

The town’s process for selecting prayer-givers virtually ensured a Christian viewpoint. Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process.

So that’s where we stood last May. It was obvious that the town of Greece was promoting Christianity at their meetings. It was illegal. It should have been the end of the story. Of course, the (Christian) Alliance Defense Fund was going to appeal the ruling, but that had a snowball’s chance in hell of happening, right?

As we found out yesterday, snowballs exist in hell.

The Supreme Court granted certiorari (PDF) to the case, meaning they will hear the arguments and decide whether to accept the Court of Appeals’ ruling or overturn it:

As the SCOTUS Blog notes, the issue at hand here is:

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Or, in other words, even though there wasn’t outright discrimination at work here — it’s not like they said only Christians could deliver the invocations — did the City Council still violate the Constitution?

If the Supreme Court rules in favor of the City Council, Christian prayers are going to be heard at city councils around the country. One of the reasons they don’t happen everywhere now is precisely because the local governments don’t want to open the door to atheists and Muslims and Wiccans and other non-Christians.

Americans United for Separation of Church and State is, of course, urging the court to uphold the Court of Appeals’ ruling (they defended Galloway and Stephens):

A town council meeting isn’t a church service, and it shouldn’t seem like one,” said the Rev. Barry W. Lynn, executive director of Americans United. “Government can’t serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion.”

Not in question here is whether the invocations should be allowed in the first place. In general, the courts have ruled that non-sectarian invocations are permissible (see Marsh v. Chambers). But non-sectarian means not just Christian, and the town of Greece has clearly violated that ideal. I would hope Christian groups join our side, too. Not that it matters how many groups are on our side, but it would make very clear that this is not a case of Atheists versus Christians. This is a case between those of us who think the government ought to stay neutral with respect to religion versus those who think the Christian majority should be able to get special privileges because of their faith.

It seems likely that the conservative bloc (Justices Roberts, Alito, Thomas, Scalia) will support the Christian prayers. But which way will swing justice Anthony Kennedy vote? Think Progress took a stab at that one:

Kennedy has held that “government may not coerce anyone to support or participate in religion or its exercise,” but it is not clear that he would forbid much else under the Constitution’s ban on government establishment of religion. By the end of the next Supreme Court term, however, it is very likely that his views will carry the day.

So… they don’t really know either. The Establishment Clause is up in the air and we have no idea where it’ll land. That should freak all of us out.

Here’s the upside to all of this: This is one of those cases that unites our community without exception — virtually all of the atheist and church/state separation groups will submit amicus briefs when the time comes; a few may sit out, but no one will oppose this. None of the groups want to see a government that promotes atheism. We want the government to leave decisions about faith to private citizens and we don’t want local city councils deciding that their official religion is Christianity, even in practice if not in policy.

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