On The Front Lines

U.S. Supreme Court Upholds Practice of Legislative Prayer and Rejects Demand that Such Prayers be “Sanitized” of Sectarian References

WASHINGTON, D.C. — The U.S. Supreme Court today reaffirmed the historic practice of legislative prayer, ruling that a New York township did not violate the Constitution when it invited local clergy to open town meetings with prayers that included references to Jesus and Christianity. In a 5-4 decision, the Court found that the Town of Greece did not violate the First Amendment’s Establishment Clause by allowing local ministers, priests and other religious leaders to offer prayers to solemnize the monthly town board meetings even though the prayers were often given in the name of Jesus or were otherwise distinctly Christian, reversing a judgment of the Court of Appeals for the Second Circuit that the practice was unconstitutional. Echoing arguments made by The Rutherford Institute in a friend of the court brief filed in support of the Town of Greece, the Court ruled that courts are not to censor the content of legislative prayer unless the prayer opportunity has been exploited to proselytize one, or disparage any other, faith.

“The essential question in this case is whether the government can provide an opportunity to pray to citizens and at the same time dictate the content of the prayers, censoring those who invoke their personal God according to their conscience,” stated John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “The answer, as the Supreme Court has ruled, is in the negative—the government does not violate the constitution by allowing sectarian references in legislative prayers and simply cannot prescribe or proscribe the content of any ‘official’ prayer without violating the First Amendment rights of persons.”

The Town of Greece holds monthly board meetings and since 1999, in an effort to solemnize the proceedings, has opened the meetings with an invocation offered by a member of the clergy from a local religious group or organization. All local religious leaders were offered the opportunity to present the town meeting invocation: initially, a town employee called congregations listed in the local directory until a person volunteered to offer the prayer, and eventually the town compiled a list of persons who had expressed a willingness to give the invocation. At no time did the town exclude or deny an opportunity to would-be prayer givers, and religious leaders of any persuasion, laymen, or even atheists could give the invocation. However, because the local religious congregations were predominantly Christian, the prayers offered at town meetings were usually given by a Christian and often contained distinctly Christian content. Yet the town never reviewed or changed the content of any prayer before it was given. In 2008, two local residents sued the town alleging that it had violated the Establishment Clause by preferring Christians over other prayer givers and by endorsing sectarian prayers. Although a federal district court rejected the challenge to the town’s prayer practice, an appellate court ruled that the practice had the effect of endorsing Christianity because it resulted in predominantly Christian invocations at the town meetings. In reversing the appeals court decision, the Supreme Court reaffirmed its 1983 ruling in Marsh v. Chambers, that the practice of prayers to solemnize the proceedings of legislative bodies does not constitute an establishment of religion in violation of the First Amendment. It then ruled that neither its Marsh ruling nor any of its other precedent requires that prayers offered to solemnize legislative meetings be nonsectarian or not identifiable with any one religion. “To hold that invocations must be nonsectarian would for the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech,” the Court wrote in its ruling. So long as the prayer practice is not used to proselytize one religion or disparage another, the Court held that the practice is constitutional. Indeed, the Court also recognized that once the government invites prayer into the public sphere, it must allow the prayer giver to address her deity according to his or her conscience.