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Faith and Action members, from left, Patty Bills, Raymond Moore and the Rev. Rob Schenck pray in front of the Supreme Court building on Monday.

Justices OK prayer before town meetings

– A divided Supreme Court ruled Monday that legislative bodies such as city councils can begin their meetings with prayer, even if it plainly favors a specific religion.

The court ruled 5-4 that Christian prayers given before meetings of an upstate New York town council did not violate the constitutional prohibition against government establishment of religion, citing history and tradition.

“Ceremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government,” Justice Anthony Kennedy wrote for the court’s conservative majority.

The ruling reflected a Supreme Court that has become more lenient of how government may accommodate religion in civic life without crossing the line into endorsing a particular faith. All nine justices endorsed the concept of legislative prayer, with the four dissenters agreeing that the public forum “need not become a religion-free zone,” in the words of Justice Elena Kagan.

But there was sharp disagreement after that. The court’s five conservatives said legislative prayers need not be stripped of references to a specific religion – the prayers at issue often invoked Jesus and the resurrection – and said those given the opportunity to pray before legislative meetings should be “unfettered” by what government officials find appropriate.

“Absent a pattern of prayers that over time denigrate, proselytize or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation,” Kennedy wrote.

He was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Kagan’s dissent was both narrow – the town could have remedied its problems by finding more religious diversity in its prayer-givers, she said – and broad. The First Amendment’s promise, she wrote, is that “every citizen, irrespective of her religion, owns an equal share in her government.”

Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined her.

The case involved the New York town of Greece, just outside Rochester, where the council regularly opened its meeting with a prayer delivered by someone in the community. The speakers were recruited from the town’s houses of worship, which happened to be overwhelmingly Christian.

In fact, every meeting from 1999 to 2007 opened with a Christian prayer, and even after two of the town’s residents filed a lawsuit, only a handful of non-Christians have delivered the invocation.

A panel of the U.S. Court of Appeals for the 2nd Circuit found that “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint” because the town had not reached out to a more diverse group of prayer-givers or made clear that the prayers did not represent the town’s beliefs.

The Supreme Court decided 30 years ago that state legislatures may begin sessions with an invocation. But the new case asked whether there might need to be different rules for a local council meeting, where residents often come to ask for favorable official action.

Kennedy began by referring to history: The same founders who wrote the First Amendment – with its prohibition on the establishment of a government religion but also protections for religious liberty – provided funds for congressional chaplains, he said.

“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,” he wrote.

And he said there was no evidence that town council members “allocated benefits and burdens based on participation in prayer.”

The court’s majority split on how to judge whether prayers amount to coercion of nonbelievers.

“The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” wrote Kennedy in a part of the opinion joined only by Roberts and Alito.

Kagan said the town of Greece’s policy violates the norm of religious equality – “the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

She said town hall meetings were different from legislatures or Congress. They are “occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters.” Such meetings require more sensitivity to the prayers offered before a diverse audience, she said.

But in Greece, she wrote, “month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits.”

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