In a 5-4 opinion, the high court overturned Monday (May 5) a federal appeals court, which ruled that the prayer policy of the Greece, N.Y., Town Board violated the First Amendment's ban on government establishment of religion. The Second Circuit Court of Appeals in New York City had reversed a federal judge by deciding Greece's prayer practice "had the effect of affiliating the town with Christianity."
The narrow decision was the latest in a long line of important Supreme Court opinions providing guidance on the relationship between church and state. Advocates for the freedom of religious expression in public meetings applauded the ruling.
Russell D. Moore, the Southern Baptist Convention's lead religious liberty spokesman, said he is "very thankful the Court did the right thing in refusing to allow the government to take on the mission of the church and in refusing to allow the government to establish a state-ordered civil religion that crowds out the most basic rights of freedom of speech."
"This is a victory for all of those who believe in the freedom of speech, including religious speech, as a prized part of our God-given religious liberty," said Moore, president of the Ethics & Religious Liberty Commission (ERLC), in a written statement. "Prayer at the beginning of a meeting is a signal that we aren't ultimately just Americans. We are citizens of the State, yes, but the State isn't ultimate. There is some higher allegiance than simply political process."
The Alliance Defending Freedom (ADF), which represented the town of Greece, said the justices' decision was another affirmation "Americans are free to pray." ADF Senior Counsel David Cortman said in a written release, "In America, we tolerate a diversity of opinions and beliefs; we don't silence people or try to separate what they say from what they believe. Opening public meetings with prayer is a cherished freedom that the authors of the Constitution themselves practiced."
In writing the majority opinion, Associate Justice Anthony Kennedy relied on the country's history and Marsh v. Chambers, a 1983 Supreme Court decision that upheld the constitutionality of chaplaincy prayers in the Nebraska legislature
"The prayer opportunity in this case must be evaluated against the backdrop of historical practice," Kennedy wrote. "As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of 'God save the United States and this honorable Court' at the opening of this Court's sessions."
In determining what is constitutional in the church-state arena, the justices "must acknowledge a practice that was accepted by the and has withstood the critical scrutiny of time and political change," Kennedy said.
"That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society," he wrote.
Kennedy, who maintained his frequent role as the deciding vote on a deeply divided court, struck a blow in his opinion for robust religious expression in a pluralistic society. He noted Greece's board did not review the prayers prior to meetings nor did it offer guidelines for their content.
"To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact," he wrote.
"Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy," Kennedy's opinion said.
"The tradition reflected in permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing references to religious doctrines, does not remove it from that tradition," he wrote.
"A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a 'spirit of cooperation' among town leaders," Kennedy said.
The Greece board's prayer policy is not coercive, and it does not violate the First Amendment by virtue of most of the city's congregations being Christian, he said.
Joining Kennedy in the majority were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The court's four more liberal members -- Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- dissented.
In her dissenting opinion, Kagan wrote, "When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines."
Moore addressed Kagan's point in a blog post for Time magazine May 5, writing, "his is itself a religious claim, that faith is simply a private personal preference with no influence on our public lives. That's a claim that millions of us, whatever our religious beliefs, reject."
The ERLC and other defenders of Greece's board said in friend-of-the-court briefs its prayer policy provided a forum for private citizens to offer prayers that were constitutionally protected. They also said the Second Circuit's opinion would require judges to make theological decisions regarding the acceptability of different prayers.
Michael and Jonathan Whitehead, Southern Baptist lawyers who wrote the ERLC brief, praised the high court's opinion for its common sense.
"Sometimes court opinions are convoluted and indecisive. It is an answer to prayer that this decision is clear on the right of 'we the people' to pray in public meetings," Michael Whitehead, Jonathan's father, said.
"The Supreme Court has left the parsing to the parsons. Let each minister pray according to his or her faith or belief," he said in a written release. "This does not establish a particular religion, but establishes religious freedom and mutual respect."
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.
Three Southern Baptists were among 10 theologians who signed onto another friend-of-the-court brief supporting the Greece prayer policy. 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 Obama administration argued on behalf of Greece before the high court, seeking to defend the practice of congressional prayers.
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 opinion came in the Greece v. Galloway case.
Tom Strode is Baptist Press' Washington bureau chief. 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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