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Craig Parshall, General Counsel

 

High Court: Handcuffs Off Public Prayer

May 8, 2014

For years, federal courts, government agencies, and state and local bodies have been wrestling with the constitutionality of prayers that are conducted at official functions. Invocational practices have often been shackled under the mistaken belief that public prayer, particularly when the name of Jesus is invoked, is a violation of the Establishment Clause of the First Amendment. On Monday, the Supreme Court cleared away much of the legal smog that has confounded that issue. In a remarkably straightforward decision, the Court ruled that prayers by local clergy before the start of a town meeting are legal, even if most of those doing the praying are Christians, and even if Christ is explicitly named in the invocation.

In the 5-4 decision authored by Justice Anthony Kennedy, the Court held that the Town of Greece in New York was within its rights when it resorted to a local clergy directory to invite Town religious leaders to sign up to lead short prayers before the commencement of the Town meetings. The complainants who filed suit to close down that practice tried to advance the reasoning of the lower court's ruling; the Second Circuit Court of Appeals, based in New York, had held that the "steady drumbeat" of Christianity infused in the prayers had unconstitutionally aligned the Town with a Christian viewpoint. But the Supreme Court disagreed, and rightly so. The majority opinion pointed to the historical evidence supporting such prayers, starting with the Founding, and noted that "the Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort [the complaining parties] find objectionable." It also rejected the nonsensical notion that the Town needed to search beyond the town limits of the predominantly Christian community just to scrounge up non-Christians to pray in order to legitimize its practice. Simply put, imposing such a mandatory "diversity of religious views," the Court said, would likely create exactly the kind of entanglement in religion that is forbidden by the First Amendment.

There are subtler, but equally important residuals from this Supreme Court decision. The Court put largely to rest the assumption by many radical secularists that "ecumenical prayers," in other words, bland, non-sectarian invocations, are the only ones that are constitutionally permitted at official public events. I was also delighted to see the Justices criticize (and reject) the faulty "endorsement" rule that had been advanced particularly by former Justice Sandra Day O'Connor, a legal test that would strike down historically-rooted government acknowledgements of faith whenever they are perceived to have "the effect of endorsing a patently Christian message." In sum, the Court said, "Government may not mandate a civil religion that stifles any but the most generic reference to the sacred ..." and need not require religious ceremonies in public settings to be reduced to only "vague and artificial" references to God.

There are limits to the Court's ruling, however. For instance, the Court suggested that the Town of Greece ruling might not apply to public schools, where acknowledgments of God can be restricted because of the risk of implicit "coercion" of students. But despite that, the Court has done us a further service. Laced throughout this ruling is the idea, dating back to our Founders, that a forbidden "establishment of religion" occurs only when citizens are actually compelled by government, indeed coerced, to engage in some religious practice against their conscience. Thus, public and official acknowledgments of the reality of God, and even the divinity of Christ, are not forbidden. I can almost hear the distant echoes of the Founding Fathers cheering that.