The Obama administration, entering a major new test case on government-religion ties, has urged the Supreme Court to allow prayers at the beginning of government meetings, even if most if not all of the recitals are from one religion, such as Christianity. But, in a a newly filed brief, it has also asked the Court not to allow citizens to join in such sessions with their own private prayers.
The Court in May agreed to decide, at its next Term, the case of Town of Greece v. Galloway (docket 12-696), involving the prayer practices at meetings of a town council in the upstate New York community of just under 100,000 people. The federal government is not directly involved in the case, but chose to enter it to offer its views, as it has in a number of other cases involving prayers in government settings.
The new brief at one level is a defense of the long-standing practice in Congress of opening daily sessions with prayers, but on a broader level it provides a full defense of religious-oriented prayers at government meetings — provided they do not seek to recruit believers or criticize a given faith. But it contended that it does not matter, constitutionally, that those attending hear only, or mostly, the expressions of religious belief of one sect or denomination.
“Neither federal courts nor legislative bodies,” the brief argued, “are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.” Thus, it argued that the Second Circuit Court was wrong in delving into the specifics of pre-meeting prayers at the Greece Town Council and in concluding that the identity of the prayer-givers and the religious references they made amounted to an endorsement of the Christian faith and thus crossed the line constitutionally.
The Circuit Court, it contended, should not have sought to analyze the content of the prayers, and should not have required that the town government seek a diversity among clerics who would be invited to lead the prayers.
To that extent, the government brief supported the town in its appeal, and supported the host of organizations that have lined up to file briefs in favor of the town’s prayer practice. But the government brief parted company with an alternative argument that the town has advanced: that, once a government body has begun a practice of having prayers, it has created a “limited public forum” in which citizens could offer their own private prayers without being censored as to content.
Here is how the town’s brief made that point: “Once the Town established an opportunity for private citizens to open the legislative session and allowed all to participate, the freely held views of its citizens are entitled to constitutional protection and cannot be disturbed.”
The Constitution, the government said in seeking to refute that argument, does not allow the creation by government of “a forum for private prayer,” but allows government only to provide a means to try to make the government gathering itself more “solemn” and to use the prayers to seek “divine guidance” for the government’s public actions, not with the private supplications of citizens taking part.
The government brief differs in another significant respect from a core argument made by the town. The town’s brief mounted a sweeping attack on the use of the “endorsement” theory when evaluating whether a legislative session prayer crosses over the constitutional line. That theory, the town contended, has no role to play in judging prayer practices. (The “endorsement” test is often identified with the church-state opinions of now-retired Justice Sandra Day O’Connor, and requires courts to pore over a religious practice to see if it identifies the government with a specific faith or denomination.)
That broad assault by the town on the theory is not imitated in the government brief. Indeed, there is a section of the government document which suggests that a government body that has not had prayers as a part of its historic practice perhaps should take steps “to clarify to a reasonable and informed observer” that it is adopting a prayer practice in keeping with the limited role of prayers in government settings. The reference to the views of an observer suggests an element of caution about whether a newly adopted prayer practice might be seen as a form of endorsement of religion.
The Court has not yet set a hearing date for this case.
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