The high court heard arguments Wednesday (Nov. 6) in an appeal of a lower-court ruling that invalidated a New York town's prayer policy for its board meetings. In overturning a federal judge's opinion, the Second Circuit Court of Appeals in New York City had ruled the Greece, N.Y., Town Board violated the First Amendment's ban on government establishment of religion with a prayer practice that "had the effect of affiliating the town with Christianity."
The justices are expected to announce a decision in the case before they adjourn next summer.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) and other defenders of the town's prayer policy contended in friend-of-the-court briefs the practice did not violate the establishment clause. The ERLC argued the policy provided a forum for private citizens to offer prayers that were constitutionally protected and the Second Circuit's opinion would require judges to make theological decisions regarding the acceptability of different prayers.
Part of the Nov. 6 arguments focused on the issue of whether the prayers at issue constituted a government exercise.
University of Virginia law professor Douglas Laycock, representing two women who sued the town of Greece, said prayer by various clergy, mostly Christian in this case, is a "government function."
Associate Justice Antonin Scalia disagreed. "I think the average person who participates in a legislative prayer does not think this is a governmental function. It's a personal function," he told Laycock.
Laycock denied the goal was no prayer at town board meetings. "We're saying you cannot have sectarian prayer," he told the justices." The town should instruct chaplains to "keep your prayer nonsectarian."
Associate Justice Anthony Kennedy asked Laycock, "o in other words, the government is now editing the content of prayers?"
"Editing the content of government-sponsored prayers," Laycock replied.
Associate Justice Samuel Alito asked Laycock for an example of a prayer "that would be acceptable" to Christians, Jews, Muslims, Buddhists, Hindus, Wiccans, Baha'i.
One-third of the prayers at Greece's board meetings would be acceptable, Laycock estimated.
Thomas Hungar, a Washington lawyer representing Greece, said the theories proposed by Laycock and his clients conflict with the free exercise and establishment clauses of the First Amendment -- "that it's not the business of government to be regulating the content of prayer and regulating theological orthodoxy."
The lawyers referred at different times to Marsh v. Chambers, a 1983 Supreme Court decision that upheld the constitutionality of chaplaincy prayers in the Nebraska legislature.
Greece's prayer policy is "further from the constitutional line than the state legislature's practice in Marsh," Hungar said. "Because there, Nebraska had one chaplain from one denomination for 16 years and yet that was constitutionally permissible, and his prayers were not distinguishable in content from the prayers at issue here during the time that was relevant to the case."
The Obama administration argued on behalf of Greece, seeking to defend the practice of congressional prayers.
Ian Gershengorn, deputy solicitor general, told the justices the Second Circuit opinion requires courts to decide "when a legislature has permitted too many sectarian references in its prayers or has invited too many Christian prayer-givers."
The appeals court's decision is flawed because, he said, "First, it cannot be squared with our nation's long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver's own religion idiom. And second, it invites exactly the sort of parsing of prayer that Marsh sought to avoid and that federal courts are ill-equipped to handle."
The arguments came after the marshal closed her opening statement with the court's traditional version of a prayer: "God save the United States and this honorable court."
Supporters of the constitutionality of legislative prayers expressed hope after the arguments.
"While some justices were tempted to parse the words of prayers, the attitude at the end of the day seemed to be: 'Let's leave the parsing to the parsons,'" said Michael Whitehead, who co-wrote the brief for the ERLC with his son Jonathan. Both attended the oral arguments.
Michael Whitehead also said in a statement for Baptist Press, "While some justices thought it necessary for government policy to instruct prayer-givers to keep their prayer terms 'nonsectarian,' all the justices seemed to agree that it is impossible to get every religious observer to agree with a single definition of 'nonsectarian.'"
Jordan Lorence, senior counsel for Alliance Defending Freedom, said Kennedy -- who may be the swing vote again between the court's conservative and liberal coalitions -- "seemed disinclined to have government people editing prayers."
"And there seemed to be a majority of the justices that were bothered by that, as well as prayers that are too specific," Lorence told BP after sitting in on the oral arguments.
"here are all sorts of things that go on as public events at a city council meeting that could be offensive to people," Lorence said. "I think the solution is teaching people how to be more tolerant of other views, not saying you have a constitutional right to sanitize the corridor you walk down from anything offensive. And I think we have a majority that is going to go the right way on this case."
The Baptist Joint Committee for Religious Liberty filed a friend-of-the-court brief opposing Greece's prayer policy. Hollyn Holman, its general counsel, told BP after the arguments it is "hard to make any predictions."
In an Oct. 15 column for The Huffington Post, ERLC President Russell D. Moore wrote, "A prayer, by definition, isn't a speech made to a public audience but is instead a petition made to a higher Being. For the government to censor such prayers is to turn the government into a theological referee, and would, in fact, establish a state religion: a state religion of generic American civil religious mush that assumes all religions are ultimately the same anyway."
Conservative evangelicals, Moore also wrote, "believe the Gospel isn't in need of state endorsement or assistance. Wall Street may need government bailouts but the Damascus Road never does."
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 Whiteheads are lawyers in private practice in the Kansas City, Mo., area and 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.
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 the 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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