In the previous post in this series, I set up the problem facing the Supreme Court as it discusses the Greece case. Can the Court come up with guidelines for prayers that meet the earlier high standard of requiring strict neutrality between religions and between religion and non-religion or even the later lower standard set by the 1983 Marsh case that the prayers do not ‘proselytize, advance, or disparage’ any religion? If such guidelines can be drawn, then how can government agencies at any level see to it that they are followed without running afoul of the other constitutional requirement that the government not censor or otherwise parse the content of prayers or, even worse, dictate the content of the prayers?
Given this historical background, we can get a better appreciation of the oral arguments in the Greece case. One should not take oral arguments and questioning as indicative of how the judges will eventually rule but they are helpful in pointing to the issues that they think are important.
It was clear that the judges were struggling with the problems raised by the Marsh precedent. The justices seemed to be agreed that proselytizing prayer in favor of one group was wrong but were unclear about how to police such prayers since they were also of the view that it would be seriously problematic for the government to get into the business of monitoring and pre-clearing prayers before delivery since that would be tantamount to endorsing a governmental prayer which has been ruled to be unconstitutional.
Thomas Hungar, the attorney for the town of Greece, in defending the practice of opening prayers, focused strongly on the Marsh precedent and the ‘proselytize, advance, or disparage’ standard articulated by chief justice Warren Burger in his majority opinion. He said that as long as the prayers met those criteria, and as long as there was no coercion involved, then it passed constitutional muster. He said that the Greece practice met that standard. He also brought up the ‘history and tradition’ invoked by Burger, that the fact that a given practice had existed for a long time and had not led to the establishment of religion should be given significant weight.
Oddly enough, it was justice Scalia who seemed most skeptical of this last argument.
JUSTICE SCALIA: How can it be that if the practice existed in the past, it was constitutional? Was it constitutional in the past?
MR. HUNGAR: Yes, Your Honor.
JUSTICE SCALIA: If it was constitutional in the past, why –why would it be unconstitutional if the same thing is done today, even without any past parallel practice? (p. 12)
Chief Justice John Roberts also seemed troubled by the ‘history and tradition’ justification of Marsh.
But wouldn’t we look at it differently if there were –suddenly if there were a proposal today for the first time, to say let’s adopt a motto “In God we trust”? Would we view that the same way simply because it’s –in other words, the history doesn’t make it clear that a particular practice is okay going on in the future. It means, well, this is what they’ve done –they have done, so we’re not going to go back and revisit it. Just like we’re not going to go back and take the cross out of every city seal that’s been there since, you know, 1800. But it doesn’t mean that it would be okay to adopt a seal today that would have a cross in it, does it? (p. 11)
But we should not assume that Scalia seeks to strike down prayers as unconstitutional. In later comments it seemed like he felt that that kind of special exemption was too narrow and that what he may be seeking is to make a sweeping ruling that prayer represents the religious expression of the speaker as a citizen, not of the government, even if that person is in an official role as a member of a governmental body, and thus should not be curtailed at all.
JUSTICE SCALIA: There is a serious religious interest on the other side of this thing that –that –that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens, and not –not as judges or as experts in –in the executive branch. And it seems to me that when they do that, so long as all groups are allowed to be in, there seems to me –it seems to me an imposition upon them to –to stifle the manner in which they –they invoke their deity. (p. 41)
Scalia reiterated this point later.
JUSTICE SCALIA: Well, that’s –that’s – that’s really part of the issue, whether they’re undertaking a government function or whether they’re acting as citizens in a legislative body, representative of the people who bring –who bring to that their – their own personal beliefs. I think the average person who –who –who participates in a legislative prayer does not think that this is a governmental function. It’s a personal function. And –and that’s why we separate out the legislative prayer from other kinds of prayers. (p. 49)
Justice Ginsburg seemed to be seeking to find a way to rule very narrowly, suggesting that since the Greece meetings involved a mixture of both legislative and administrative functions, they represented a class of government to which prior rulings did not apply. Unlike Scalia, she seemed to be seeking for way to avoid a sweeping ruling.
The judges also grappled with what kind of prayer might be acceptable to everyone in the community, with the questioning in this area initiated by Scalia. This line was later picked up by Roberts in his questioning of the attorney Douglas Laycock appearing for the two women challenging the prayer practice. What bothered me was that Laycock did not argue against all prayer but only against sectarian prayer, even though one of the people he was representing was an atheist. When challenged by justices Alito and Roberts to provide a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus, Wiccans, Baha’is and atheists (p. 31), he conceded that that would not be possible but seemed to be willing to abandon atheists and polytheists as not being able to get their interests met (p. 32). But despite that concession, when asked to come up with a prayer that would be acceptable to all but atheists and polytheists, he struggled and failed.
The court also repeatedly came back to the question of, assuming that there may be a form of prayer that was acceptable, how to ensure it. The Deputy Solicitor General Ian Gershengorn, also speaking on behalf of the town of Greece, made this point explicit in his opening remarks.
GERSHEGORN: The Second Circuit’s decision here requires courts to determine when a legislature has permitted too many sectarian references in its prayers or has invited too many Christian prayer-givers. That approach is flawed for two reasons. First, it cannot be squared with our nation’s long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver’s own religion idiom. And second, it invites exactly the sort of parsing of prayer that Marsh sought to avoid and that Federal courts are ill-equipped to handle. (p. 19, 20)
JUSTICE SOTOMAYOR: So unless you parse the prayers, you can’t determine whether there’s proselytizing or damnation. (p.20)
Other justices, especially justice Anthony Kennedy (p. 50,51) pointed out that even if the broad outlines of such a prayer could be designed and given to potential prayer givers, that act and the policing of the prayers would involve the government in the unacceptable role of a censor, and so we were back at that seeming Catch-22. In response, Laycock said, “If you really believe government can’t draw lines here, then your alternatives are either prohibit the prayer entirely or permit absolutely anything.” I think Laycock is correct in this reasoning.
Laycock’s other argument seemed to be that prayers such as those given by the town of Greece were coercive, that since people come to these town meetings seeking redress for some grievance, they would feel obliged to stand or bow their heads or whatever else was required of them in order not to antagonize the people running the meetings, even though they may not share the religious views expressed in the prayer. I wrote earlier about how Susan Galloway said that this was exactly how she felt at the meetings.
Courts have been much stricter about forbidding religious practices in schools because they felt that children were more susceptible to pressure and coercion because of their age and because they often had no choice but to be present. What constitutes coercion for adults has been less clear.
In the next (and last) post in this series, I will look at the possible range of options available to the court in adjudicating this case.