The US Supreme Court ruled yesterday that the prayer practices of the town of Greece were constitutional. The court voted 5-4 with the usual alignment of Kennedy, Roberts, Alito, Scalia, and Thomas in the majority, with Kennedy writing the majority opinion. You can see all the opinions here and Lyle Denniston has some analysis of it.
There has been great alarm expressed in secular circles over this ruling. But in my opinion it is not a big change from the past as can seen from my series of posts on this topic earlier this year. The prayer practices in Greece were not as bad as the ones that the court had ruled constitutional back in 1983 in the case of Marsh v. Chambers and so I expected this result and the final ruling followed pretty closely what I predicted back in February.
The two most extreme and sweeping rulings would be that either all prayers at government functions are unconstitutional or (Scalia’s suggestion) that prayers are merely the personal expression of the prayer giver and hence anything is allowed. After listening to the oral arguments, I suspect that neither extreme is going to gain majority support and so it is likely that the court will rule more narrowly.
Here justice Ginsburg’s comments may suggest an option for how to fashion such a ruling. She pointed out that the Greece town meetings had both legislative and administrative functions. The meetings started with a prayer and then the town council conducted its business and then about half an hour later, it switched roles while in the same room and became an administrative body that dealt with citizen concerns. So the court could argue that this hybrid body is a special case and make a ruling that applies only to similar bodies.
But that ruling could go either way. The court could conclude that prayers in such situations are not permissible because the separation between the legislative and administrative functions was not great enough to prevent people who had business before the council not to feel coerced. Or it could rule that the separation is great enough that people who did not like the prayers could skip it and come later and so there was no coercion and hence the prayers were fine. It would depend on whether the pro-prayer or anti-prayer faction of the nine justices can gain a majority. I suspect that it will be the pro-prayer group.
The court ruled narrowly and went again with the ‘history and tradition’ argument that it used in Marsh because it seemed worried that banning such prayers altogether would create controversy. Here’s Kennedy:
Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change… A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. (p.8)
As expected, the idea of allowing only nonsectarian prayers was rejected.
An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. (p.10)
The new ruling seemed to add a wrinkle to the old precedent by saying that any kind of prayer goes as long as there is no consistent pattern of discrimination in favor of or against one sect.
In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. (p.14)
The court downplayed the Endorsement test and ignored the Lemon test that the Second Circuit Court of Appeals had used in ruling unanimously that the Greece prayers were unconstitutional. Instead it leaned more heavily on the issue of whether there was coercion because the public is present. Kennedy said (p.19) that as long as the Town Board members did not ask the people to stand or otherwise participate, that was acceptable even if the prayer giver asked the public to do so. He also disingenuously said that the prayers were aimed at the members of the Board of Supervisors and not the public, something that is flatly contradicted by the facts of the case, as justice Kagan pointed out in her dissent. He also added that the people were not forced to be present during the prayers since the portion of the meeting where the prayers were said was not the policymaking and public participation part and so people were free to come and go. (p.23)
Justice Elena Kagan wrote the principal dissent and it was disappointing. Even she supported the idea that ceremonial prayers could be constitutional and endorsed the ‘history and tradition’ justification of the Marsh precedent. Nowhere to be seen in her opinion were the powerful arguments against all such prayers that justice William Brennan used in his Marsh dissent. She merely said that the prayers in Greece crossed a line. Her dissent was based narrowly on the facts of the case and she said that what differed here was that the Town Board was not a purely legislative body but also conducted business that required people to attend and the prayers were directly aimed at them, unlike Kennedy’s characterization that they were aimed at the Board supervisors.
Justices Thomas and Scalia in a concurring opinion upholding the prayers wanted to go even further and argued that the 14th Amendment that extended all the First Amendment restrictions on Congress to apply also to state and local governments should not have been extended to the Establishment Clause, so that states should not be bound by it at all. They also argued that only explicitly legal coercions should count and not “subtle coercive pressures”.
As I said, upholding the prayer was not unexpected based on the Marsh precedent and the make up of this court. So what has changed? It looks like the Supreme Court has gone a bit further than that earlier precedent and said that even sectarian ceremonial prayers are acceptable as long as there is no consistent pattern of discrimination against other believers and nonbelievers.
This opinion was a bit of a mess and will add to the hodge-podge of criteria that the court has used in Establishment Clause cases, where they seem to start with what verdict they want and then concoct some justification for it. It can be summed up as the court’s majority saying, “We wanted to allow ceremonial prayers and have found some way to justify it.”