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Supreme Court tackles the separation of church and state in public prayer case

November 6, 2013 at 12:00 AM EDT
Supreme Court justices stood divided as they debated the constitutionality of public prayer at government meetings. Religion & Ethics NewsWeekly's Tim O'Brien reports on the case that began in Greece, N.Y. Then, Jeffrey Brown talks to National Law Journal's Marcia Coyle on how the Supreme Court has ruled on prayer in the past.

JUDY WOODRUFF: The arguments before the Supreme Court today centered on the separation of church and state. The justices are considering whether municipal governments are violating the Constitution and endorsing religion by opening their sessions with prayer.

We begin our coverage with a version of a report that originally aired on the PBS program “Religion & Ethics Newsweekly.”

Contributing correspondent Tim O’Brien has the story.

MAN: The August 20, 2013, meeting of the Greece Town Board will now come to order.

TIM O’BRIEN: Ever since John Auberger was elected town supervisor 15 years ago in Greece, New York, a predominantly Catholic suburb of Rochester, the town has begun its monthly meetings with a prayer.

TOM LYNCH, prayer leader: For the benefit of all of Greece and mankind in general, we offer these prayers.

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TIM O’BRIEN: On this evening last August, the prayer was offered by Tom Lynch, an adherent of the Baha’i faith.

TOM LYNCH: Oh thou, oh kind Lord, this gathering is turning to thee.

TIM O’BRIEN: It was Auberger’s idea.

JOHN AUBERGER, Greece, N.Y.: It’s important from primarily historical — from a historical perspective. Our founding fathers believed in the right for us to pray and have that freedom of expression in prayer, and that’s what we offer here today in 2013 in the town of Greece.

TIM O’BRIEN: But the founding fathers also drafted the First Amendment, prohibiting the government from establishing religion — no state-sponsored church.

Two Greece residents, Linda Stephens, an atheist, and Susan Galloway, who is Jewish, say for any governing body to begin its sessions with such prayers violates that First Amendment ban.

SUSAN GALLOWAY, plaintiff: I think for the protection of government, as well as for the protection of religion, that they need to be separate.

I think when government gets involved in religion, it corrupts religion, and I think when religion gets involved with government, it can corrupt government.

TIM O’BRIEN: A federal appeals court in New York sided with Galloway, noting that roughly two-thirds of the prayers offered contained references to “Jesus Christ, Jesus, your son, or the Holy Spirit.”

AYESHA KHAN, Americans United for Separation of Church and State: Greece Is opening its meetings with a presentation that is uniquely Christian, in an environment where people have come to petition the government. From the time the prayer practice started in 1999, up until the end of 2007 — an eight-year time period — they had nobody but Christian clergy.

TIM O’BRIEN: The lower court found that of more than 130 prayers offered, only four had been offered by non-Christians.

The impact of all this is unclear, given that hardly anyone ever shows up at these board meetings. The number of spectators rarely exceeds the number of board members.

The most consistent spectator may be Susan Galloway, who for years has shown up with her video camera to document the proceedings.

Attorney Khan took the unusual step of including links to Galloway’s video in the electronic version of the brief she filed with the court, allowing the justices to instantly view what the lower court found to be an unconstitutional government endorsement of religion:

MAN: Blessed are you who has raised up the Lord Jesus.

TIM O’BRIEN: That the message is predominantly Christian should be of no concern, says Supervisor Auberger, because anyone can give the prayer and say whatever they please.

JOHN AUBERGER: If anyone at any time during my 15-and-a-half years as supervisor were to come and want to be able to offer the prayer, then we would have definitely obliged them.

TIM O’BRIEN: Now, you don’t censor or control anything that they say?

JOHN AUBERGER: Absolutely not.

TIM O’BRIEN: What if somebody were to come in and say, “Believe in Jesus or you’re going to burn in hell forever?”

JOHN AUBERGER: Well, we believe in, again, diversity to be able to pray, to say the prayer in a manner that that individual decides.

TIM O’BRIEN: The Obama administration is siding with the town of Greece in the case, telling the court legislative prayer is permissible, even with religious content, so long as it does not proselytize or advance any one, or disparage any other, faith or belief.

The administration relies heavily on a 1983 Supreme Court ruling allowing state legislatures to hire chaplains to offer invocations at the start of their legislative sessions.

MAN: Let us pray.

TIM O’BRIEN: Both the U.S. Senate and the House routinely begin their sessions with prayer.

JUDY WOODRUFF: Now Jeffrey Brown is here to examine what happened during today’s arguments.

JEFFREY BROWN: And with me, of course, is Marcia Coyle of “The National Law Journal,” who was, as always, paying close attention in the courtroom this morning.

Welcome back, Marcia.

MARCIA COYLE, The National Law Journal: Thanks, Jeff.

JEFFREY BROWN: Now, first, let’s set the context. This is an area that the court has wrestled with for a long time, right, how much religion or prayer to allow in official settings.

MARCIA COYLE: Absolute, Jeff.

This country has a very long and strong religious tradition, and there are those in our country who feel there ought to be more government accommodation of religion in the public square, and also those who believe that there should be a high wall separating church and state.

And it’s — the Supreme Court struggles with trying to find the line that can accommodate both and give meaning to the Establishment Clause in the First Amendment.

JEFFREY BROWN: All right, the Establishment Clause, the key thing that they’re looking at, right?


JEFFREY BROWN: Let’s show the audience and let’s — here it is: “Congress shall make no law respecting an establishment of religion.” That’s come into play in school prayer, in the legislate — in a case like this, a lot of cases.

MARCIA COYLE: Nativity scenes, Ten Commandment monuments on public ground. The court has come up with a number of tests for Establishment Clause violations, and none of those tests appear to satisfy all of the justices at any one time.

JEFFREY BROWN: OK. Now, speaking of the justices, so, today the town of Greece, as we saw in that piece, comes to court having lost at the lower appeals level.


JEFFREY BROWN: What did their lawyer argue and what did he — what would he meet up with in the justices?

MARCIA COYLE: Their lawyer was Thomas Hungar of a local Washington, D.C., firm.

And he basically told the court that this case begins and ends with their 1983 decision upholding legislative prayer in the Nebraska legislature. He said that the prayers here are really no different, that as long as the prayers, as the court said in 1983, do not proselytize, advance, or denigrate and any one religion, they are constitutional.

He also relied very heavily on the long mystery of legislative prayer in this country, and did get some pushback. Chief Justice Roberts, for example, asked him, how far can you carry an historical argument? Don’t certain things become artifacts?

For example, the chief said, the motto “In God we trust,” if that was proposed today, it might receive a very different reception than it did when we first adopted it for our money. But Mr. Hungar emphasized that the history here is very significant because it shows first that legislative prayer has not led to the establishment of a national religion and the history goes back to the very drafting of the First Amendment.

JEFFREY BROWN: And he’s pointing, as we saw again, at the federal level, right, the Senate and House open their sessions…

MARCIA COYLE: That’s right. They do.

And there was some concern, too — and he had to address this aspect of the other side’s argument — that maybe prayer in legislatures — or in local government meetings could possibly be coercive.

Justice Sotomayor…

JEFFREY BROWN: Because somebody has to come there to bring their case.



MARCIA COYLE: They may have a zoning request that’s going to be voted on or some other reason to be there. And Justice Sotomayor even asked, not only Mr. Hungar, who was supporting the town, but the Obama administration came in on the side of the town, and she asked the deputy solicitor general, who would not stand up if a minister said stand and join or bow your head in prayer before a local government body that was going to vote on your petition?

JEFFREY BROWN: All right, now what about the argument by the lawyer representing the two women we saw in that piece?

MARCIA COYLE: The two women were represented by a well-known religion clause scholar, Douglas Laycock of the University of Virginia School of Law.

And he was saying, well, there is coercion here. He disagreed with the other lawyers that the prayer here was separated in time from actions by the town board or things like zoning petitions, so there was coercion. But he also said that he wasn’t saying there can never be prayer at legislative meetings.


JEFFREY BROWN: Not going that far.


In fact, he said, what they are arguing is you cannot have sectarian prayers. You have to have nonsectarian prayers.

JEFFREY BROWN: And then the definition of sectarian becomes an issue.

MARCIA COYLE: Sectarian — exactly. And that raised concerns with justices who felt, for example, Justice Kennedy, will judges be drawn into deciding what’s sectarian and what’s not sectarian?

And Justice Alito pressed him hard to give an example of a nonsectarian prayer, which he had some trouble doing.

JEFFREY BROWN: All right, just very briefly, is it possible they will decide this narrowly, or is there the chance that they really up this realm that you started with?

MARCIA COYLE: Some thought this might be an opportunity to craft a new — new rule to give guidance for the lower courts, but it looked as though that’s not going to happen, that they may ultimately turn back to that 1983 decision and say, this is legislative prayer.

JEFFREY BROWN: We will have you back when they decide.

Marcia Coyle of The National Law Journal, thanks so much.

MARCIA COYLE: My pleasure, Jeff.