When the nine justices of the U.S. Supreme Court gather today to hear oral arguments in a case on legislative prayers, it could lead to a new era of defining the First Amendment.
The case, Town of Greece v. Galloway, has the hopeful eye of many across the ideological spectrum as the justices might issue a ruling that changes what types of public religious expressions are allowed in governmental settings.
The case, which has divided Baptists, poses the first Supreme Court test of prayers at governmental meetings since the 1983 Marsh v. Chambers decision.
That case, which was decided on a 6-3 vote before any of the current members joined the high court, held that prayers at the start of Nebraska state legislative sessions were constitutional.
The current case comes to the Supreme Court after years of litigation and divided rulings.
In 1999, the Town Board of Greece, N.Y., started inviting local clergy members to offer a prayer at the start of legislative meetings.
In 2008, two residents of Greece sued the town, arguing the prayers violated the Establishment Clause of the First Amendment.
Although Greece won the local trial, a three-judge panel of the U.S. Court of Appeals – 2nd Circuit overturned the decision and declared the practice of prayers at the local legislative meetings to be unconstitutional.
“We conclude that an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity,” the appeals court judges wrote in their decision.
Emphasizing that they did not believe prayers at legislative meetings were inherently unconstitutional, the judges added that what they were ruling against was a case where “an official affiliation with a particular religion violates the clear command of the Establishment Clause.”
However, the judges remained skeptical that a local municipality could actually adopt a prayer practice that did not become too sectarian.
Thus, the judges concluded that municipalities should “pause and think carefully before adopting legislative prayer” since “[o]urs is a society splintered, and joined, by a wide constellation of religious beliefs and non-belief.”
Despite the precedence of Marsh v. Chambers, the members of the Supreme Court might rule against the prayers in the Town of Greece v. Galloway. One key reason involves the nature of the meetings.
While members of the public are not required to attend Nebraska state legislative sessions, some are required to attend local legislative meetings, such as to request a zoning permit. The issue of involuntary attendance could impact the court’s decision.
Another key issue likely to dominate today’s oral arguments concerns the sectarian nature of the Greece prayers (several of which can be watched online).
In the Nebraska case, the court found the prayers to be generic, but in Greece the prayers are predominately sectarian in nature.
Other than a few exceptions in 2008 after the lawsuit was filed, all of those praying from 1999-2010 were Christian and many of the prayers were explicitly sectarian.
Despite the differences between the two cases, many court observers expect a narrow ruling. As with several church-state cases in recent years, it could be a 5-4 decision.
Justice Anthony Kennedy, the key swing vote on the court, may be the deciding fifth vote in either direction.
Although Kennedy has ruled against public prayers at school events, he has sided with allowing religious displays (like the Ten Commandments) on public property.
Perhaps prefiguring the court, Baptist groups interested in religious liberty have split on this case.
From the vantage point of the Baptist Joint Committee for Religious Liberty (BJC), whose offices overlook the Supreme Court building, the appeals court made the correct decision by ruling the prayers unconstitutional.
The BJC, whose member bodies includes several Baptist conventions, filed a friend-of-the-court brief outlining its opposition to the sectarian prayers at local legislative meetings.
On the other side of the case, several Southern Baptist leaders have filed friend-of-the-court briefs arguing that the prayers in Greece do not equal an establishment of religion.
The Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention filed a brief supporting the public prayers, and ERLC President Russell Moore has written and spoken extensively in various media outlets to defend this position.
A group of theologians – including Daniel Akin of Southeastern Baptist Theological Seminary, Stephen Evans of Baylor University and Albert Mohler of Southern Baptist Theological Seminary – filed a separate brief also supporting the practice of legislative prayers.
As the justices, lawyers, media and spectators file into the Supreme Court building for oral arguments, many will walk past the newly restored façade that has been covered in scaffolding for two years.
Inside the court, the arguments may give a peak at whether or not the justices will undertake a renovation of the U.S.’s current church-state balance.
Brian Kaylor is a contributing editor for EthicsDaily.com.