Prayer at government functions-10: The oral arguments in Greece v. Galloway

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.


  1. Wylann says

    Has the court said when we can expect the ruling on this? You provide a good summary, but I’ve found it nearly impossible to actually predict how the individual members will rule. It sometimes seems to me like they get together, decide what outcome they want, how they want it to maybe be seen in the future, and decide who gets to write the majority and minority opinions.

  2. Mano Singham says

    The court doesn’t usually announce in advance when they will give a ruling on a specific case.

    In my next post, I will look at the possible outcomes and my own (admittedly wild) guess as to how they will rule.

  3. Frank G. Sterle Jr. says

    Prey For The Unanswered Prayer

    To fully clarify my perspective on the most sensitive and likely greatest human institution, prayer and theism, I believe in God—though a genderless God (to whom I still refer as Him to avoid terminological hassle) and one not at all necessarily confined to an absolute Biblical sense—and that prayer can and sometimes does work. Either way, it certainly cannot hurt, as long as a believer/practitioner continues to live within reason and responsibly (e.g. to not do something foolish like, as a good example, pray to God for self-healing and then allow your health’s status to remain with unconditional reliance in that theistic prayer.
    Although scientific study has actually proved that prayer can heal, I believe that when prayer does work, it’s more likely due to a positive meditation effect than divine intervention.
    In one scientific experiment about which I read in a secular newspaper article, an ill though recuperating hospital patient was the unwitting recipient of ‘healing-focused’ prayer directed his way by an assembled group of a dozen strangers from an apparently irrelevant distance away from the targeted hospital patient; meanwhile, another such patient, also not any the wiser, received no such test-subject prayer. Guess who won?
    Having said that, however, I find bewildering the commonly held notion that God, for example, would enable one praying couple’s child to survive an illness, while allowing another praying couple’s child to perish, even with great suffering. Furthermore, I can’t help but conclude upon serious consideration that by saying grace before a meal, we, the well fed—because of the bitter reality of large-scale Earthly starvation—are in effect presuming that our Creator has found one portion of the planet’s populace worthy of nourishment while allowing another large portion to go hungry or even slowly starve to death. One shouldn’t too readily conclude such, but perhaps through their expression of such theistic thanks and praise, people feel, at least to some degree, less guilt regarding obvious global region inequities and inequalities, be it guilt relief on a conscious and/or subconscious level.
    To be fair, it’s likely that the guilt which I feel whenever learning or being reminded of the misery surrounding me—which I believe is in part reflected in my theological, ideological and existential perspectives directly or indirectly included in this essay—seemingly worsening in direct proportion with the increasing distance (in all 360 degrees of direction) that the so very many who extremely suffer (e.g. war-torn, famine-smitten Africa) reside from my own hometown residence.
    Again to be clear, I do believe that there are countless extra-dimensional, diabolical entities which unfortunately can/do intervene in our lives, and often they viciously do so. But I also believe that God had to become directly involved with humanity while incarnate as the Christ savior. Quite unfortunate, though, it’s all too obvious even through simple observation of the prevalent, planet-wide great suffering, that any holy/righteous spiritual forces on this Earthly realm are considerably outnumbered by those of the diabolical. After all, we humanity are hardly on Godly turf ‘down’ here on this atrocity-prone populated rock. Yes, plenty of believers would define any holy presence on Earth as ‘divine intervention,’ but such belief would in effect be diminishing the omnipotence and thus superiority of God over all else.
    Recalling the days in the late-1980s during which my bible-believing Christian faith was fairly strong, I was quite open to the possibility that theistic prayer could actually result in divine intervention. But I definitely wouldn’t lay a figurative bet on it happening as a certainty.
    When I was first diagnosed with clinical depression—with much more to imminently come later—after being admitted to a hospital psychiatric ward (in April, 1987, at age 20), I’d already spent most of the previous four months self-shut inside my room while listening, on a mass scale, to an all-Christian radio station, with intermittent prayer to my Maker for this or that reason or cause. Today, I realize that had I accomplished anything from that prayer, it would mostly have been self-serving. Meantime, although I prayed a considerable amount for my mother hospitalized with a physical ailment, she nonetheless suffered greatly and persistently. Could it be that she didn’t receive enough intense enough prayer from enough sources? Or perhaps an insufficient quality of prayer?
    Was I left as a cynical atheist because of such fruitless prayer? Because I was lucky enough to not actually expect it to ever happen, no, I remained with much of my faith intact; if the prayer ever did get ‘answered,’ then it would be to me like icing on a cake, so to speak.
    It was about at that point in my life when I first realized the bitter irony of holding faith in prayer: Unanswered prayer breeds atheism and/or agnosticism.
    And I didn’t necessarily feel smug, deservedly privileged nor ‘blessed in some way’ because I didn’t have to endure the self-imposed burden of disappointment as a resultant of unanswered prayer as do very many believers. Rather, whenever I thought of my (non)experiences with prayer, especially when hearing/reading about former theists mocking all of theism and prayer to a deity, I felt plain lucky that I just happened to feel the way I did—i.e. to never expect nor place any hope upon prayer being answered and, eventually in later years, God does not, and perhaps (in some unimaginable way) cannot, intervene in conventional human affairs. Period.
    “God answers all prayers, but sometimes His answer is ‘no’,” one can hear from many solid believers of divine intervention. But I find such reasoning too convenient of an explanation as to why such a tiny portion of theistic prayer on a global scale seems to get fruitfully answered, assuming that such fruit was of divine origin.
    “Sometimes God works in mysterious ways,” is one explanation, however, that did make me think, at least for a moment. Perhaps God, for example, wants family members of, as a good example, murdered children to become loss-motivated advocates—His messengers of sorts—for preventing child victimization, and He therefore allows the tragic deaths, one of the few very worst losses imaginable for caring parents.
    There’s likely a notable number of parents out there whose prayers, in a sense, were ‘answered’ because of the U.S.-initiated “Amber Alert”—a rare, truly progressive side effect from something so tragically horrible as the abduction, rape and murder of a little girl named Amber. Her distraught mother, who understandably didn’t want her daughter’s brutal demise to be in vain, tirelessly lobbied politicians and others to establish a nationwide awareness and policing plan, in which the entire nation, mostly through news-media-outlet announcements, goes on an Amber Alert while looking out for missing children once they are reported to police as worry-worthy, anomalously absent.
    But how should the many other parents who lose their children basically in the same manner as Amber, yet no matter how intensely the parents lobby politicians for a law change or creation through legislation, nothing positive comes of their extreme loss? I can imagine something along the lines of, an overwhelmingly bereaved parent lingers in a mental institute until suffering an untimely death due to, say, a stress related, major heart attack or severe stroke.
    Nevertheless, so very many people continue believing that God would be willing to bless one tiny group of fortunate people while neglecting the vast majority.
    I once spotted a photo in a non-religious community newspaper with accompanying caption and cutline, consisting of a Christian school’s basketball team immersed in group prayer, supposedly asking God for a game with a favorable outcome (i.e. a good score and/or positive attitude). Even if God could or would answer the prayers of the ball players or those of everybody else, why in this so-often-anguished world would or should He care about the outcome of a trivial sporting event? As a letter-writer to that newspaper rhetorically asked: Would not God, if He hears and responds, have far greater tasks or concerns at hand, such as, just for starters, aiding starving African children? (FYI: replying with, “He does aid starving children, through His followers,” simply does not cut it; for, too many of His followers too often do not aid, or they aid insufficiently.)
    Perhaps it’s obvious to say, but hopefully praying for a favorable outcome for any sporting event outcome will soon become naught but an anomaly; for, much more bewildering and disturbing was another news story about a night of brutal sport called Ultimate Fighting—absolutely excessive, antithetical to Christ-like behavior—at, of all places, a church’s community center.
    Theism and prayer have become societally solidified over millennia, without doubt, which is mostly why my unconventional thoughts on this topic are so often misconstrued as a declaration that God is apathetic towards His creation. On the contrary, I believe that God does indeed love and care very much for humanity, even though we frequently cruelly hurt or even viciously kill one another.
    I also strongly feel that if a theist objectively observes civilization, he/she will likely realize that God has allowed humanity what we collectively so desire—free will, be it good or bad. (It began with a metaphorical or literal Adam and Eve choosing to eat the forbidden fruit of the Tree of Knowledge of Good and Evil; thus, as warned by God, they lost their would-be eternal innocence and blissful ignorance of the forbidden knowledge, not to mention losing Eden’s perfect climate and full protection in which to thrive.) Worst of all, we, though most notably the countless innocent children amongst us, must collectively bear the often brutal consequences of that free will.
    But really, what makes so many of us believe that we should have our cakes and eat them, too—i.e. enjoy the pleasures of free will, but cry out for and expect divine mercy and rescue when our free will ruins our figurative good day?
    What compels me most, though frustratingly so, to express my observations on such a controversial topic as that of prayer, is the emotional anguish that those who lose children must endure when observing or reading about relieved, grateful parents shown on the news (etcetera) whose children were spared torture and death: “Oh, thank God—He has truly blessed us!”
    It’s doubtless that such ‘blessings’ are unimaginably so very appreciated by countless believers, such as the said fortunate parents, but is not printing and broadcasting such public expressions by the fortunate parents at least somewhat inconsiderate of and insensitive to the many unfortunate, ‘non-blessed’ parents?
    Regardless of what’s been stated by me in this essay, the fact remains that most Christians believe in a divine presence on Earth referred to as the Holy Spirit. It’s said to be the figurative though crucial third leg of a holy trinity, which also includes “the Father” and “the Son.” From my understanding, the Holy Spirit is supposedly simultaneously a part of God and God Himself, as are also the Father and the Son (yes, it’s a rather bewildering theological concept).
    It’s believed by the faithful that the Holy Spirit is all that’s both strongly encouraging and enabling whatever amount of good that still exists amongst humankind. Indeed, looked at from a more frightening perspective, the Holy Spirit’s pristine-clean presence (maybe even one without specific sentience?) is believed by many Christians to be the only obstacle left that’s keeping humanity’s collective, potentially quite malicious nature from creating outright ‘Hell’ on Earth—all ever since the expulsion, literal or figurative, of Adam and Eve from Paradise.
    The analogy that’s often used by believers states that pure darkness is but the total absence of light. In fact, for many believers, the Holy Spirit’s presence is all that, when it is so, successfully ‘exorcises’ diabolical spirits out of people and/or places.
    No doubt many believers would strongly suggest that the Holy Spirit’s presence on this planet is in itself ‘divine intervention’—albeit apparently on its own as but one of three powerful aspects of the trinity. Perhaps this cleansing spiritual presence, many might also suggest, is what’s often referred to as the “guardian angel,” though it is typically portrayed in both theology and popular culture as indeed beholding a specific sentience.*

  4. Mano Singham says

    @Frank G. Sterle,

    You said,

    In one scientific experiment about which I read in a secular newspaper article, an ill though recuperating hospital patient was the unwitting recipient of ‘healing-focused’ prayer directed his way by an assembled group of a dozen strangers from an apparently irrelevant distance away from the targeted hospital patient; meanwhile, another such patient, also not any the wiser, received no such test-subject prayer. Guess who won?

    The people who were not prayed for actually ‘won’, in that their health outcomes were better. I wrote about these prayer studies here.

  5. Wylann says

    Wow, that’s a wall of spam. Mostly wrong too, as you point out. Funny how often the “genderless God (to whom I still refer as Him to avoid terminological hassle) and one not at all necessarily confined to an absolute Biblical sense” resembles exactly, the bibilical god when they are trying to hide their true nature.

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