In 5-4 ruling, court answers town’s prayer

WASHINGTON - A divided U.S. Supreme Court gave government officials more room to incorporate religion into civic life, ruling that the Constitution lets a New York town board start most meetings with a Christian prayer.

The content of the prayers is not significant as long as they do not denigrate non-Christians nor try to win converts, the court said in a 5-4 decision backed by its conservative majority. Two residents argued that the town of Greece is unconstitutionally coercing its citizens by inviting local religious leaders to deliver monthly prayers that often explicitly invoke Jesus.

The outcome relied heavily on a 1983 decision in which the court upheld an opening prayer in the Nebraska Legislature and said prayer is part of the nation’s fabric, not a violation of the First Amendment’s guarantee of freedom of religion. The court Monday applied that decision to local government meetings.

“Legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society,” Justice Anthony Kennedy wrote for the court.

The vast majority of state legislative bodies open the day with some kind of prayer, as do both houses of Congress. At the Supreme Court itself, the marshal calls each session to order with the words “God save the United States and this honorable court.”

Underscoring the prevailing political sentiment, 34 senators and 85 House members had signed separate briefs endorsing legislative prayers. Only 12 House members joined an opposing brief that urged tighter scrutiny, and no senators did.

Attorneys general from Texas, Idaho and 21 other states supported the town of Greece’s legislative prayer program. No states took the opposing position, and the hour-long oral argument last November left little doubt that a majority of the justices would legally bless the practice.

“Defenders of religious freedom at home and abroad should be encouraged by today’s ruling,” declared Sen. Marco Rubio, R-Fla.

FAMILIAR SPLIT

The case split the court along familiar lines, with the four Democratic appointees - Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan - in the minority. Ginsburg, Breyer and Kagan are Jewish, while the court’s other six justices are Roman Catholic.

Kagan wrote that the town’s practice “does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

The Constitution’s First Amendment bans government “establishment of religion.” The Obama administration backed the town in the case.

The ruling underscores the continuing impact of the 2006 retirement of Justice Sandra Day O’Connor. In deciding against Greece, a New York-based federal appeals court adopted an O’Connor-crafted test for church-state separation questions. The appeals court said the town’s practice “must be viewed as an endorsement” of Christianity, violating the Constitution.

‘ENDORSEMENT TEST’

Kennedy’s opinion mentioned that “endorsement test” only in passing. Instead, he asked whether the town was coercing its residents into praying, invoking a test that gives government bodies more leeway. Kennedy said residents and board members were free to leave the room during the prayer.

“In the general course, legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate,” Kennedy wrote.

O’Connor’s successor, Justice Samuel Alito, joined Kennedy in the majority, along with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

Thomas and Scalia joined only part of the opinion, writing separately to say they would have gone further in allowing government-sponsored prayer. Thomas wrote that only “actual legal coercion” - such as taxes that support a church or mandatory attendance laws - raised potential problems under the First Amendment.

LOCAL IMPACT

The issue of prayer before city council meetings has surfaced several times in Arkansas over the past few years.

In 2010, the American Civil Liberties Union of Arkansas threatened the North Little Rock City Council with potential legal action after a resident or residents complained to the ACLU about the council’s practice of opening its meetings with a prayer that endorsed Christianity to the exclusion of other religions.

The council addressed the complaint by including a disclaimer on council agendas and meeting telecasts that any religious viewpoints expressed were the personal opinions of the speaker. The notice also stated that any prayer is “not intended to proselytize, advance or disparage any religious belief.”

The ACLU said the city’s concessions in recognition of diverse beliefs helped defuse the issue, saying it recognized that nonsectarian prayer is allowable under federal law.

North Little City Attorney Jason Carter said at the time that the issue was a nationwide concern, and, “City councils that are going to continue to have prayer need to be cognizant of citizens who have diverse religious beliefs.”

In 2011 , the Wisconsin-based Freedom From Religion Foundation asked the Conway City Council to stop offering a prayer at its meetings, noting that it had been contacted by “several local residents and taxpayers who strenuously oppose prayer before government meetings.”

The town’s mayor said the prayers began after the Sept. 11, 2001, terrorist attacks, and that the council simply “invites people to join us” in prayer if they want, before the meeting is called to order.

The foundation also complained about “sectarian prayers” opening city council meetings in Bentonville and Searcy in 2010.

And a Cherokee Village official sought advice in 2008 from the Arkansas Municipal League about the legality of an opening prayer at city council meetings.

OBJECTING RESIDENTS

The two Greece residents, Susan Galloway and Linda Stephens, said that over a 4-year period, more than three-quarters of the town’s prayers were explicitly Christian, containing references to Jesus and often seeking audience participation. They said the prayers offended them and, in Kennedy’s words,“made them feel excluded and disrespected.”

But Kennedy said the relevant constitutional question was not whether they were offended. “Adults often encounter speech they find disagreeable,” he wrote.

The town, a suburb of Rochester, said it doesn’t shut out members of other faiths. After the two women complained, officials arranged for opening prayers to be delivered by a Jewish man, a Baha’i leader and a Wiccan priestess who invoked Apollo and Athena.

“The Supreme Court just relegated millions of Americans - both believers and nonbelievers - to second-class citizenship,” said Barry Lynn, executive director of Americans United for Separation of Church and State, which represented the two women.

Kennedy said the town didn’t improperly discriminate in selecting its prayer-givers. He said Greece “consistently chose Christian prayer givers” because it “limited its list of clergy almost exclusively to representatives of houses of worship situated within Greece’s town limits.”

From 1999 through 2007, and again from January 2009 through June 2010, every meeting was opened with a Christian-oriented invocation. In 2008, after Galloway and Stephens complained, four of 12 meetings were opened by non-Christians. Galloway and Stephens are described in their court filings as a Jew and an atheist.

A town employee each month selected clerics or lay people by using a locally published guide of churches. The guide did not include non-Christian denominations, however. The appeals court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there.

The two residents filed suit and a trial court ruled in the town’s favor, finding that the town did not intentionally exclude non-Christians. It also said that the content of the prayer was not an issue because there was no desire to proselytize or demean other faiths.

But a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that even with the high court’s 1983 ruling, the practice of having one Christian prayer after another amounted to the town’s endorsement of Christianity.

‘RELIGIOUS DIVERSITY’

“Prayers like these have been taking place in our nation’s legislatures for over 200 years,” said Eric Rassbach, a lawyer with the Becket Fund for Religious Liberty, which supported the town. “They demonstrate our nation’s religious diversity and highlight the fact that religion is a fundamental aspect of human culture.”

Kagan accused the majority of “blindness” toward the actual circumstances in Greece.

“Month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits,” she wrote.

Moreover, she said, the clergy “put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders.”

While far shorter than Kagan’s 25-page dissent, Breyer added his own five-page dissent, likewise emphasizing the town’s predominantly Christian prayers. About two-thirds of the town’s prayers over the course of a decade invoked the terms “Jesus,” “Christ,” “Your Son” or “the Holy Spirit,” the dissenters noted.

“The town made no significant effort to inform the area’s non-Christian houses of worship about the possibility of delivering an opening prayer,” Breyer wrote.

The Supreme Court has taken up religion cases only sparingly since Roberts became chief justice in 2005. In perhaps the biggest ruling before now, a 5-4 decision in 2010, it revived a federal law designed to protect a Christian cross erected as a war memorial in a national preserve.

The case is Town of Greece v. Galloway, 12-696.

Information for this article was contributed by Greg Stohr of Bloomberg News; Mark Sherman of The Associated Press; Adam Liptak of The New York Times; Michael Doyle of the McClatchy Washington Bureau; and Linda Satter of the Arkansas Democrat-Gazette.

Front Section, Pages 1 on 05/06/2014

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