But the really big surprise came this week when the Obama administration filed its own brief on the defendant’s behalf. The administration did not need to say anything at all about this case. But that it would file on the defendant’s side was shocking, especially given that the vast majority of lower court decisions side against Greece. To be sure, the solicitor general’s brief strikes a more moderate tone than the defendant’s. In fact, it sides with the plaintiffs on much of the law—agreeing that prayers cannot be overwhelmingly Christian without unconstitutionally affiliating the government with Christianity. But then for some reason, not really articulated in the brief, the solicitor general concludes that the situation in Greece is not quite bad enough to violate the Constitution.
It’s not clear the plaintiffs will have an easy time in court. Greece claims it is willing to accept anyone (religious or not) who wants to offer an invocation, and nothing obviously disproves that claim. The 2nd Circuit ruled that the plaintiffs have abandoned the argument that Greece discriminated against prayer-givers of particular denominations, which has been a real problem in other cases. (There is a 4th Circuit case involving a Wiccan who received a letter saying she could not pray because she was a Wiccan, and an 11th Circuit case about a town that deliberately excluded Mormon, Jewish, and Islamic clergy from participating.) To the defendant, the plaintiffs’ claim here is simply that there is just too much Christian stuff. And that, the defendant says, amounts to a thoroughly awful kind of religious censorship.
Both sides have valid concerns. In an important sense, legislative prayer ends up being a zero-sum game for religious liberty. Listeners deserve to be protected from their government making religious statements with which they disagree. But protecting them requires speakers to change the ways they pray. It’s a classic Catch-22, but it captures a very obvious point: We live in a world where people have different religious beliefs. Some folks, of course, do not pray. But those who do pray in different ways; they pray to Gods that they do not see as the same God. In that world, there is just no way for the government to pray in a way that satisfies everyone. This has always been the central problem with the government practicing religion: Whose religion will it practice?
Thirty years ago, the court spoke of legislative prayer as “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” But each time a local government decides to allow legislative prayer, it has to make religious choices, choices that inevitably that cause conflict. Who gets to pray? You could try to let everyone pray. But some speakers will abuse the opportunity. There’s also an incredible temptation to play favorites. These are elected bodies; letting the Wiccan pray comes with political consequences. And what will you do about the content of peoples’ prayers? Say nothing, make suggestions, issue requirements, require drafts of prayers in advance? And whatever the rules are, how will you enforce them? What if a prayer-giver suddenly goes off-script, and begins praying about how abortion is murder or about how gays and lesbians deserve to be ordained? (Those are real examples.) Do you cut off the microphone? Try and sanction them afterward? And what will you do if they get interrupted? The Senate once invited a Hindu guest chaplain to offer prayers, and he got interrupted by protestors in the balcony. Those protestors received prison terms.
In the end, because these choices are made by politicians, these controversies spill out into politics. Most law professors and judges live in big cities, but entire local elections in small towns have been decided on legislative prayer issues. Religious campaigning becomes inevitable. One small town in California recently considered banning denominational prayers.* In response, a citizens’ group purchased billboard space on nearby highways and threatened to display each council member’s vote under one of two columns—“For Jesus” or “Against Jesus.” In a recent 9th Circuit case, a city held a referendum on whether prayers to Jesus Christ should be allowed. Twelve thousand votes were cast—76 percent in favor, 24 percent opposed.
This is disturbing, but not surprising. This is what happens when the government takes positions on religious issues. People want the government to adopt their religious views. They will campaign for their religious positions; they will vote for them; they will lobby for them. If we agree that there is something troubling here, what we are really agreeing on is the idea that the government should not take religious positions. Marsh v. Chambers moved us away from that idea. Greece v. Galloway will almost surely not overrule Marsh. But it would be a loss if Greece takes us even further away.
Correction, Aug. 15, 2013: This article originally misstated that a small town in California considered banning nondenominational prayers. They considered banning denominational prayers. (Return to the corrected sentence.)