GWEN IFILL: The Supreme Court today, in a 5-4 decision, today ruled that local governments can open town meetings with a prayer, even if the prayer-giver explicitly represents one religion.
Marcia Coyle of “The National Law Journal” was in the courtroom this morning, and she is back with us tonight.
So, remind us about this. We have talked about this on this program before, this case.
MARCIA COYLE, “The National Law Journal”: We did.
GWEN IFILL: Remind us what the conflict was.
MARCIA COYLE: Sure.
Two residents of the town of Greece, New York, filed a constitutional challenge in 2008 to the town board’s opening of its meetings with prayer. The residents — these two residents claimed that the prayers were almost exclusively Christian in nature, and that violated the First Amendment’s prohibition on government establishing a religion.
The lower federal appellate court here agreed with them. They said the overwhelming Christian nature of the prayers for nearly a decade gave the appearance of government endorsing religion, which violates the First Amendment. So the town brought the appeal to the Supreme Court. It was backed by the Obama administration. And that was the case before — that the justices decided today.
GWEN IFILL: When people think about these cases, they often think about the nativity scenes on church — at the courthouse lawns. Is this different from that?
MARCIA COYLE: Yes, it is.
In fact, Justice Kennedy, who wrote the majority opinion, said today this case, legislative prayer cases, are controlled by a 1983 Supreme Court decision in which the court upheld legislative prayers at the opening of the Nebraska legislature. And it ruled that way based on the nature’s long tradition and history of legislative prayers, a tradition that goes back to the first Congress.
So he rejected the challengers’ arguments that the prayers should be nonsectarian. He said that to have a rule like that would draw government and courts into analyzing and maybe even censoring the content of prayer, which is worse than what was happening in the town here, which wasn’t editing or dictating the content of the prayers.
GWEN IFILL: So, does this really mean that all challenges to legislative prayer are now off the books?
MARCIA COYLE: No, not really.
In fact, Justice Kennedy said that you are not going to base a decision on the content of a single prayer, but what you want to look for is whether there is a pattern of prayer that over time proselytizes, advances or denigrates one belief over another. And that wasn’t the case here, he said.
GWEN IFILL: And as long as are you not required to pray, you are not forced to pray, then it’s OK?
MARCIA COYLE: Well, this was another part of the challengers’ argument, that these prayers were coercive, because the residents who attended this meeting, if they didn’t adhere to the belief that was being part of the prayer, they were either forced to remain in the room or feign participation in the pray before — so as not to offend a member of the town board whose help they might be soliciting during the meeting.
GWEN IFILL: OK. So there is always another point of view, even know this was a 5-4 ruling.
MARCIA COYLE: Yes.
GWEN IFILL: But there were clearly dissenters who felt, in fact, that the court wasn’t going far enough and dissenters who thought they had gone too far?
MARCIA COYLE: Well, the dissenters, they agreed with the court that the 1983 decision upholding legislative prayer was right.
However, they said that the prayers in this case didn’t fit the tradition that the court upheld in 1983. Justice Kagan said that these prayers were almost exclusively Christian in nature. There was no effort on the part of the board to bring in other types of religions.
And she also said that it didn’t fit the pattern of legislative and congressional prayer because, in those cases, the public is an audience. It’s not participating in the proceedings on the floor. But in the town of Greece, the audience is participating. The clergy member is facing the audience, occasionally asks them to stand and join in the prayer. And then the audience members who may not agree with this belief are somewhat coerced to participate or feign participation.
GWEN IFILL: Didn’t they sometimes bring in Buddhists as well and people of other religions?
MARCIA COYLE: Well, this was interesting. The year that the suit was filed, right after the suit was filed, the board did invite four non-Christian clergy persons to come and give prayers.
But, as the dissenters pointed out, even though the population in the town of Greece is overwhelmingly Christian, there was a Buddhist temple, and also there were Jewish residents who went to synagogues that were right outside the borders of the town. So the dissenters felt there was really no real effort here after the suit was filed to broaden who could come in and prayer — and pray.
But, as you pointed out, yes, there was a concurring opinion. It wasn’t a dissent.
GWEN IFILL: Right. It wasn’t a dissent. I used the wrong term.
MARCIA COYLE: Right. Right.
GWEN IFILL: Thomas and — Justices Thomas and Scalia.
MARCIA COYLE: Right.
Justice Thomas, first of all, repeated a longstanding belief of his that the First Amendment’s establishment clause doesn’t apply to the states, to states or local government, because the prohibition, he says, in the First Amendment’s text is on Congress. Congress shall make no law establishing or regarding the establishment of religion.
And he said that probably prevents Congress from establishing a national…
GWEN IFILL: Probably.
MARCIA COYLE: Probably. And I use his term, probably. But he said the text…
GWEN IFILL: A national religion.
MARCIA COYLE: Right. Right. Right.
GWEN IFILL: I didn’t let you finish the sentence.
MARCIA COYLE: But the text suggests that Congress cannot interfere with state establishments of religion.
Now, where — Justice Scalia didn’t join that part of Thomas’ opinion, but he did agree with Justice Thomas on the coercion aspect of this. They would have required a much greater showing of coercion in order to strike down the type of prayer before a government body.
GWEN IFILL: Has the reaction among liberal groups been that this is the beginning of the slippery slope?
MARCIA COYLE: Somewhat, yes.
In fact, I knew today. Just immediately after the Supreme Court’s ruling, there was a federal judge in Maryland who lifted an injunction against the county commissioners in Carroll County, Maryland, that had prohibited their prayer practice. And now they can go forward.
But I think, ultimately, local governments are going to breathe a little more easily after this decision if they were wondering if their prayer practices would withstand a constitutional challenge.
GWEN IFILL: Immediate impact, Marcia Coyle, from the Supreme Court, for a change.
Thank you very much.
MARCIA COYLE: Oh, you’re welcome. My pleasure, Gwen.