On November 6, the Supreme Court will hear arguments in Town of Greece v. Galloway, a case that could decide the fate of invocation prayers at city council meetings. (My summary of the case, the people involved, and the arguments they’ll likely make can be read here.)
This case is not about the ability of legislators to acknowledge God or seek divine guidance. It is about the right of citizens to participate in local government without being required to participate in sectarian prayers.
It is fundamental that government may not press citizens to participate in religious exercises. And whether or not Congress may sponsor sectarian prayers for those of its members who choose to participate — a question that [Marsh v Chambers] did not decide — government may not direct explicitly sectarian or proselytizing messages at the broader citizenry. The practice in Greece violates both of these principles.
The brief goes through the number of ways people pretty much have to attend Greece City Council meetings if they want to voice a complaint, request a zoning change, take an oath of office, or accept an award. High school students can even attend meetings to fulfill mandatory “participation-in-government” requirements. When that many members of the community have reason to go to these meetings, there’s even less of a reason to inject prayer in them.
It all boils down to this:
Petitioner’s prayer practice is unconstitutional for two independent but mutually reinforcing reasons. It puts coercive pressure on citizens to participate in the prayers, and those prayers are sectarian rather than inclusive.
Even if the other side argued that atheists (and everyone else who didn’t want to hear the prayers) could skip them, AU says that’s not feasible:
Avoiding the prayer would require either exquisite timing and good luck, or a confederate inside the meeting who would leave at the appropriate time to summon the conscientious objector waiting outside.
Events proceed seamlessly and in rapid succession: the call to order, Pledge of Allegiance, prayer, awards, swearing in of new employees, public forum. More than 40% percent of the time, there is no one to be sworn in and no award, so the public forum immediately follows the prayer… If no one rises to speak, the forum closes in under a minute… Citizens who attend a single meeting — to receive an award, be sworn in, apply for a permit, or address a pressing issue — would not know the Board’s rhythms and procedures well enough to avoid the prayer. For those who attend regularly, consistent tardiness would soon become apparent to the Board and other regulars.
In a savvy move, they even quote conservative Justice Antonin Scalia, who once wrote that, while non-denominational prayers might be okay at government meetings, sectarian prayers were “out of order”:
[O]ur constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington… down to the present day, has, with a few aberrations, ruled out of order government-sponsored endorsement of religion… where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).
So what’s the remedy for all this? Getting rid of government prayer altogether? Nope. AU knows that’s not going to happen. Instead, it advocates for a compromise that would allow non-denominational prayers before government meetings that are strictly voluntary:
We assume that some form of prayer will be allowed at meetings of local legislative bodies, and we have not, at any point in this litigation, asked that they be eliminated altogether. If prayers are to be presented, the challenge is to do so with the least violence to constitutional principles and to conscience.
Pressure to join in the prayers is inherent in Board meetings; it cannot be eliminated without discontinuing the prayers. But the pressure can be ameliorated. The Board could schedule the prayer a few minutes before meetings are called to order, and make clear that the prayer is only for those who choose to participate. The podium could be turned so that chaplains face the Board. Chaplains could be instructed not to request citizen participation.
It’s a solid argument. The question now is whether the justices will see it that way, too. We won’t get any more hints regarding their decision until the oral arguments take place and the justices are able to ask questions to representatives from both sides.