A rabbi, a priest, and an atheist walk into the Supreme Court. The atheist gets told to have a seat at the bar …
Let’s agree: We’ve been killing one another over religious controversies for thousands of years. That, and gossiping, is pretty much all humanity has been doing for the past few millennia. But Wednesday at the Supreme Court Justice Stephen Breyer more or less proposes that we send out for sandwiches, roll up our sleeves, and settle this thing once and for all. And he almost manages it. While his colleagues on the bench sit in various states of head-holding despair, Breyer sets out to get Wednesday’s litigants to settle on doing religion more inclusively.
The court hears arguments in Town of Greece v. Galloway, a long-simmering fight about religious prayer before town council meetings. Since 1999, the town of Greece, N.Y., has been opening its monthly legislative sessions with sectarian Christian prayers led by a “chaplain of the month.” Two female residents—a Jew and an atheist—sued the town in 2008, claiming these prayers represent an unconstitutional government “establishment” of religion in violation of the First Amendment. (After 2008, the town invited a few non-Christian chaplains to offer prayers, including a Baha’i, a Jew, and a Wiccan priestess.) The district court granted summary judgment for the town, and the 2nd U.S. Circuit Court of Appeals found for the two women in an opinion parsing out how a “reasonable objective observer” would feel about the board’s prayer, concluding that they would feel like the town was establishing a religion: Christianity.
Now legislatures are free to open their sessions with prayers, even sectarian prayers. Why? Because they’ve been doing so since the first Continental Congress, and also because in 1983, in a case called Marsh v. Chambers, the Supreme Court said that legislatures may begin their sessions with a prayer because they had been doing so since the first Continental Congress. The Marsh court did say, however, that such prayer is only permissible so long as the “government does not act with improper motive in selecting prayer-givers or exploit the prayer opportunity to proselytize, advance, or disparage any one faith or belief.” That standard would seem to require some sort of test.
And here I could bore you with talk about whether the courts have applied the so-called Lemon test, former Justice Sandra Day O’Connor’s so-called endorsement test (O’Connor is in court Wednesday), the so-called coercion test, or the pick-through-a-crèche-for-a-teddy-bear test, but the answer to each of the above questions would be “yes.” Yes, the court has applied that test—except when it has applied some other test. It’s all a huge mess with a lot of judicial hair-pulling, and now somebody has to decide whether the town of Greece crossed the line into establishing religion with their several years of exclusively Christian prayer.
The session opens with the usual “God save the United States and this honorable court." And the attorneys sworn into the Supreme Court all dutifully stand and pledge to do so—“So help me God”—and then, not wanting to be late to the God party, Justice Elena Kagan jumps in with the first question to the town of Greece’s attorney, Thomas Hungar. Kagan wonders whether it would be constitutionally permissible to open Supreme Court sessions with an invocation to “the saving sacrifice of Jesus Christ on the cross ... ”
Hungar replies that he believes this would be unconstitutional, since Marsh is about legislative prayer, not prayer in a courtroom. Kagan then asks whether such a prayer would be permissible in a congressional session, and Justice Antonin Scalia adds the caveat that it would be with the understanding that a Muslim and Orthodox Jew could lead future prayers. Hungar says that would be OK.
Justice Anthony Kennedy wonders why Hungar was so quick to dismiss Christian prayer before a Supreme Court session as unconstitutional. Hungar replies, “Legislatures can be partisan. The judiciary should not be.” This response leads Scalia to wonder why, if that’s so, the high court can open its sessions with “God save the United States and this honorable court.”
Chief Justice John Roberts asks Hungar whether the fact that things have always been this way is enough to make them constitutional. “I wonder how far you can carry your historical arguments ... in other words, the history doesn't make it clear that a particular practice is OK going on in the future.” Hungar replies that since the first Congress was writing and sending the First Amendment out to be ratified while adopting the practice of having a congressional chaplain, they clearly thought legislative prayer was constitutional.
Kennedy stops Hungar again: “The essence of the argument is we've always done it this way, which has some force to it. But it seems to me that your argument begins and ends there.”
Here’s where Breyer tries to just settle this puppy on the spot. He turns to Hungar and asks if he has any objection to “publicize rather thoroughly” that “nonreligious people are welcome to come offer a prayer?” On a website maybe? Hungar says he doesn’t think the town is constitutionally obligated to do that. Breyer presses forward: “But if all that were left in the case were the question of making a good-faith effort to try to include others, would you object to doing it?”
Scalia breaks in to ask Hungar: “What is the equivalent of prayer for somebody who is not religious?” Hungar replies: “It would be some invocation of guidance and wisdom from ... ” Scalia interrupts him: “From what?” Hungar says he doesn’t know.
The Obama administration came into this case on the side of Greece, not the plaintiffs, and Deputy Solicitor General Ian H. Gershengorn explains that the problem with this entire inquiry is that it “invites exactly the sort of parsing of prayer that Marsh sought to avoid and that federal courts are ill-equipped to handle.” Justice Sonia Sotomayor tartly reminds him that unless you parse the prayers, you can't determine whether the kind of proselytizing or damnation forbidden by Marsh has gone on. When Gershengorn replies that it’s too complicated to try to determine whether prayer is sectarian, Sotomayor snaps back, “Seriously, counselor. You can't argue that the quote that Justice Kagan read is not sectarian. It invokes Jesus Christ as the savior of the world. There are many religions who don't believe that. Let's get past that.”