The Town Board of Greece, New York, invites local members of the clergy to give prayers at the beginning of their board meetings. Most of these prayers are “sectarian” in the sense that they are explicitly addressed to Jesus Christ and recognize him as the Son of God. At oral argument it was revealed that after the litigation had commenced once a year the Town Board had invited an atheist to deliver the opening invocation. The issue in this case is whether the Board’s conduct violates the Establishment Clause of the First Amendment, which provides:
Congress shall make no law respecting an establishment of religion.Under the Fourteenth Amendment, the Establishment Clause is applicable against the states.
In 1983 in the case of Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court upheld the practice of the Nebraska legislature which had hired a Presbyterian chaplain who delivered sectarian prayers for many years. The Court upheld the actions of the Nebraska legislature. The Court distinguished government-led prayer in the public schools on the ground that adults are less susceptible to coercion than children, and because of the long tradition of opening legislative sessions with a prayer. The Court stated that the practice of opening legislative sessions with a prayer would be unconstitutional only if the prayers crossed the line into proselytizing, advancing a specific religion, or denigrating other religions. The Court in Marsh stated:
"The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief. That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer."Four members of the current Supreme Court take a narrow view of the Establishment Clause, contending that in most cases the Establishment Clause is violated only if the government “coerces” individuals on matters of religion. Four members of the Court take the position that the Establishment Clause prohibits the government from promoting, advancing, or endorsing religion, regardless of whether the action of the government constitutes “coercion.” Justice Kennedy has not taken a firm position on either side of this debate.
Before the Supreme Court the persons challenging the prayers argued that the prayers solicited at the behest of the Town Board would be constitutional if they were required to be “nonsectarian.” However, in several of the School Prayer cases including Lee v. Weisman, 505 U.S. 577 (1992) authored by Justice Kennedy the Supreme Court emphatically rejected the proposition that the government may dictate the content of prayers, and it appeared from oral argument that a majority of the justices would still reject that possibility.
The Supreme Court may uphold the practice of the Town Board to invite and permit sectarian prayer to open its sessions. Or the Court may strike down the practice and distinguish this case from Marsh on the ground that in this setting citizens routinely appear before the Board on personal business and that the action of the Board injects a religious element into the conduct of specific governmental functions. Or the Court may overrule Marsh on the broader ground that sectarian prayers are no longer permissible at the behest of the government in official settings, or on the even broader ground that prayers in general are no longer permissible by official bodies.
For the briefs, go to ABA Preview at http://www.americanbar.org/publications/preview_home/12-696.html
For a transcript of oral argument visit the website of the United States Supreme Court at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-696_i4ep.pdf
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