Lyle Denniston gives a good summary of the oral arguments presented today at the US Supreme Court in the Greece prayer case. (You read the transcript of the proceedings here.) The upshot seemed to be that the judges were skeptical of the reasoning in the precedent-setting 1983 Marsh v. Chambers case that historical practice could be used to justify ceremonial prayers at government meetings. That reasoning had led to some confusion in interpretation by the lower courts, which may be why the US Supreme Court took up this case, hoping to arrive at a clearer ruling.
But the thorny issue was how to keep ceremonial prayer at official functions while at the same time avoiding them becoming sectarian or having to pre-screen them, which would be a form of government sanctioning that would clearly be going over the line.
The easiest and most logical outcome would be to ban prayers altogether. But I get the feeling that people are unwilling to take that step. Even Douglas Laycock, the lawyer for the couple who brought the lawsuit, said that he was not arguing against all prayers but only those that were sectarian. When challenged by judge Alito as to what kind of prayer might be acceptable to all faiths, he suggested that appeals to a generic ‘Almighty’ or the ‘Creator’ might work but justice Scalia (!) said that those might offend “devil worshippers” or atheists. In fact, in the transcripts, justice Scalia was the one posing awkward questions to the lawyer for the city about what would be the equivalent of prayer for somebody who is not religious while Laycock said that it might be that atheists and polytheists and devil worshippers could not be treated equally. Unfortunately, he seemed to be willing to exclude them from consideration of any resolution to the problem.
Interestingly justice Alito finally said that “I just don’t see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups” to which Laycock replied “We cannot treat everybody, literally everybody equally without eliminating prayer altogether.” To which I say, “Amen!”
But I doubt that they will ban all prayer, logical as it is. Justice Kagan seemed to be worried about the public uproar that such a move might create. But it may be hard for the justices to get a majority on how to replace the Marsh precedent reasoning with something else and they may resort to finding a way to punt.