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Supreme Court wrestles with issue of prayer at government meetings

The Justices of the US Supreme Court sit

The U.S. Supreme Court currently finds itself in a tangle over the question of how far government can go in promoting prayer without violating the First Amendment to the Constitution.

At this point, no clear consensus among the justices has yet emerged.

Lyle Denniston of SCOTUSblog recaps Wednesday’s oral arguments HERE:

If Justice Anthony M. Kennedy was serious that history might not be enough to justify prayers to open government meetings, the Supreme Court will have to set off on a deeply challenging search for a different way to judge such religious utterances.  But if Justice Elena Kagan is right that, whatever the Court might do, it could make the cultural problem worse, then history may in the end turn out to be the only test to apply.

In other words, the fate of a thirty-year-old precedent, Marsh v. Chambers, was very much at issue in the one-hour hearing Wednesday on Town of Greece v. Galloway, but its reaffirmation could be the only way to get together a majority after the Justices in coming weeks weigh a dizzying array of alternatives.  If there are any alternatives that were not explored Tuesday, they probably would be too strange for anyone to take seriously.

This case brought the latest jousting among the Justices over the constitutional puzzle that originated in America before the Founding:  how much separation should there be between government and religion?  This time, the puzzle envelops a practice by a New York community’s town governing board of inviting chaplains-for-a-day to say prayers (or something equivalent) to start the monthly meetings.

Marsh v. Chambers is at the center of that puzzle, because it upheld prayers before meetings of a state legislature, and it did so just because the Court said it could trace the practice back to the very first Congress.  But lower courts have found reason to wonder whether Marsh should still be followed, and that is actually what the Court seemed to be pondering Wednesday with three lawyers — one for the suburban town of Greece, N.Y., one for the federal government, and one for two townspeople who protested the prayer ritual.

The town’s lawyer, Washington attorney Thomas G. Hungar, opened by complaining that a federal appeals court had stretched the Marsh precedent out of shape.  Hungar’s legal briefs had made clear that the town’s legal strategy is really dependent upon Marsh’s continuing force.

He had uttered only a few words before Justice Elena Kagan — in a question that actually would represent the hypothetical kind that would dominate the whole session — wondered about the constitutionality if the Supreme Court were to have opened this session with a practice very much like that routinely carried out by the Greece Town Board, complete with direct summonses to a Christian God and to Jesus Christ.

Hungar’s answer was that he didn’t think that would be permissible.  A moment later, Justice Kennedy somewhat impatiently asked why Hungar had conceded the point so quickly.  Why would it violate the Constitution, Kennedy asked.  The lawyer said there was no comparable history for such a ritual at the Court.

Is the practice at issue in Marsh “just a historical aberration?” Kennedy asked in a quick follow-up.  “What’s the source of the distinction?”  Chief Justice John G. Roberts, Jr., soon asked how far the historical argument would extend, and how the Court would know when to use that as the test.  Other Justices then added new queries about using historical analysis.

And, just a few minutes later, Kennedy suggested that he was not impressed with an argument that “we’ve always done it,” that the argument about government prayer “begins and ends” with whether it was validated by history alone.

By that point, it was strongly tempting to conclude that the Marsh approach was not going to be the judge of the Greece citizen prayers.  But, if not, to what would the Court then turn?  As the Justices quickly discovered, from their own questions from then on, just asking for an alternative is far different from defining one.

With Justice Stephen G. Breyer trying to lead the Court toward some rational list of what can or cannot be done with government praying, it seemed that every one of the Justices taking part in the exchanges had some variant they wanted to try out.

The Court has sometimes judged church-government issues by whether a policy or practice amounted to an endorsement of religion, and has sometimes used the test of whether government was trying to “coerce” someone into embracing a government-approved faith.  And the Justices considered both of those tests, in varying formulations, but it was not evident that a consensus was looming.

(Snip)

Near the end, Justice Kagan tried to sum up: Isn’t the question here, she said, whether public meeting prayers with references to Jesus Christ “will be allowed in a public town session like this one?”  When Laycock agreed that that was the issue, Kagan said it was a hard one, “because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways….And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”

In the coming weeks of deliberation in private, the Justices’ challenge may well begin and end with how to keep from making the problem worse.  And, at that point, leaving Marsh v. Chambers intact, allowing local governments to have prayers just as state legislatures and Congress can, might be the least cause of public agitation.

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