The Ethics & Religious Liberty Commission filed a friend-of-the-court brief Friday (Aug. 2) with the high court in an appeal of a ruling that invalidated a New York town's prayer policy for its board meetings. The justices announced in May they would review the lower court decision in the case but have not scheduled a date for oral arguments in their next term, which opens in October.
The case arrived at the Supreme Court on appeal from the Second Circuit Court of Appeals, which decided the prayers offered before the monthly meetings of the Greece, N.Y., Town Board violated the First Amendment's ban on government establishment of religion. In reversing a federal judge's opinion, the appeals court, which is located in New York City, ruled the board's prayer practice "had the effect of affiliating the town with Christianity."
In its brief, the ERLC disagrees with the Second Circuit, contending the town's policy did not offend the establishment clause but provided a forum for private citizens to offer prayers that were constitutionally protected. The brief argues the appeals court's opinion would require judges to make theological decisions regarding which prayers are acceptable.
ERLC President Russell D. Moore said he agrees with his Baptist predecessors, who did not want the "government taking on the mission of the church."
"The Town of Greece case is about a government seeking to establish a state-ordered civil religion that crowds out the most basic rights of freedom of speech," Moore said in a written statement. "That is not what our ancestors, and their allies among the American Founders, meant by religious liberty. We shouldn't have a state-sponsored Baptist church, I agree, but we shouldn't have a state-sponsored Unitarian church either, and that's what some are attempting.
"In the Town of Greece case, private citizens are speaking, praying for a blessing on the proceedings of their city council," Moore said. "The government doesn't write the prayers, and doesn't coerce anyone's conscience. To object to this is to insist not only that the government be neutral to religious expression but to insist that the government be hostile to religious expression by citizens."
Three Southern Baptists were among 10 theologians who signed onto another friend-of-the-court brief that disagreed with the Second Circuit's opinion in the case. R. Albert Mohler Jr., president of Southern Baptist Theological Seminary; Daniel Akin, president of Southeastern Baptist Theological Seminary; and James Hamilton, associate professor at Southern Seminary, joined in a brief filed by the Liberty Institute.
The ERLC brief says Greece's town board created a forum for free speech, not government speech, when it began inviting individuals to pray at its meetings in 1999.
"When the government allows religious speech in a public forum, it does not endorse any or all messages or establish religion," according to the brief. "It establishes freedom. There is no tacit imprimatur of state approval on one or all speakers."
The Second Circuit was wrong, the ERLC brief contends, when it required of legislative prayers in its decision a "perspective that is substantially neutral amongst creeds." Such a standard would unconstitutionally compare "the content of the prayer with a state-established concept of neutrality," the brief says.
"This would convert private speech and religious exercise into government speech, using a civil religion that is offensive to many citizens, including many Baptists," according to the brief.
It also would turn judges into theological arbiters, the ERLC brief says. The Supreme Court "has long recognized that the judiciary is not competent to decide theological matters for believers," the brief says.
The Second Circuit's requirement of neutrality in a prayer is impossible and actually harms religious liberty, according to the ERLC brief.
"Trying to create 'neutral' invocations at legislative meetings harms the Free Exercise rights of the religious person," the brief says. "A person wishing to give an invocation must be able to pray according to the dictates of that person's conscience without the prayer police scrutinizing the content of the prayer."
While the Second Circuit said it was not ruling against all prayers at legislative meetings, the banishment of such prayers could easily be the effect, said a Southern Baptist lawyer who co-wrote the ERLC brief. At the close of its opinion, the appeals court said after discussing the "delicate balancing act" required of governments, "These difficulties may well prompt municipalities to pause and think carefully before adopting legislative prayers, but they are not grounds to preclude its practice."
Michael Whitehead said, "Local governments reading the Second Circuit ruling will have doubts about how to have prayers that are religiously neutral. But when they read that a single prayer might be enough to make you pay the ACLU's legal fees, officials readily conclude: 'When in doubt, don't.' And religious freedom loses."
Whitehead and his son Jonathan -- lawyers in private practice in the Kansas City, Mo., area -- co-wrote the brief for the ERLC. Both are members of Abundant Life Baptist Church in Lee's Summit, Mo. Michael Whitehead was general counsel from 1990 to 1995 for the ERLC (then the Christian Life Commission) and serves now as general counsel for the Missouri Baptist Convention.
One of the Supreme Court opinions the ERLC brief relies on is Marsh v. Chambers, a 1983 decision that upheld the constitutionality of chaplaincy prayers in the Nebraska legislature.
Greece, which is a suburb of Rochester in western New York, is a town of about 96,000 people on the shore of Lake Ontario.
The case is Greece v. Galloway.
Tom Strode is Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).
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