Kagan boils the whole problem down this way: “Here a citizen is going to a local community board, supposed to be the most responsive institution of government that exists, and is immediately being forced to identify whether she believes in the things that most of the people in the room believe in—whether she belongs to the same religious team as most of the people in the room.”
Gershengorn replies that “the backdrop of 240 years of history makes this different.”
Kennedy then hits him with this one: “Part of your test is whether or not [the prayer] advances religion. If you ask a chaplain for the state assembly … who's going to go to the assembly to deliver a prayer, ‘Are you going to advance your religion today?’—would he say, ‘Oh, no!’?” Kennedy thinks it’s absurd to ask chaplains to avoid “advancing” religion when they pray.
Professor Douglas Laycock from the University of Virginia has 30 minutes to defend the two plaintiffs. He explains that the town should simply “instruct the chaplains [to] keep your prayer nonsectarian.” Justice Samuel Alito asks him to “[g]ive me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, and Hindus … Wiccans, Baha'i.”
“And atheists,” chimes in the chief justice.
“Throw in atheists, too,” prompts Scalia.
Laycock concedes that the atheists are not going to leave happy today. So Alito asks for a prayer that satisfies everyone else. They go back and forth over whether prayer to “the Almighty” would satisfy the pantheists and what to do with the devil worshippers. Laycock starts to read a prayer from the record that would seemingly offend nobody, then checks himself when he finds that it ends “in Christ’s name.”
That leads Roberts back to the original sin of Marsh: “Who was supposed to make these determinations? Is there supposed to be an officer of the town council that will review them?” Laycock replies that clergy have been leading nonsectarian civic prayer for 200 years. They know how to do this. Also, 37 state legislative bodies and the U.S. House of Representatives already issue guidelines to chaplains.
Laycock further explains that the sectarian prayer in the town of Greece was clearly coercive. Scalia says, “This is coercion? [The chaplain] says, ‘May we pray,’ and somebody doesn't want to pray, so he stays seated?” And again Breyer comes in, trying to resolve the problem by wondering whether the town can’t just say, “Let's try to be inclusive.”
“So town councils like Greece can have prayers if they are nonprovocative, modest, decent, quiet, nonproselytizing?” concludes Kennedy, sadly. Scalia notes that the people on this board pray at home, before their meals. “It seems to me an imposition upon them to stifle the manner in which they invoke their deity,” he says.
Kagan then voices what everyone else is thinking: “I don't think that this is an easy question. I think it's hard because the court lays down these rules, and everybody thinks that the court is being hostile to religion, and people get unhappy and angry and agitated in various kinds of ways. And every time the court gets involved in things like this, it seems to make the problem worse rather than better.” It’s a pickle. Judges gonna judge.
Happily, Breyer’s down to the last settlement details. He tells Laycock to just accept a deal wherein the town “must make a good-faith effort to appeal to other religions who are in that area.” And someone tells the chaplains to keep in mind that the board "is comprised of members of many different faith traditions." Done and done, right? Laycock almost sounds ready to take it. Kennedy questions whether “we write that in a concurring opinion?”
But seriously, Kennedy adds, this “involves the state very heavily in the censorship and the approval or disapproval of prayers." That sounds awful until you consider the possibility of the state involving itself in forcing people to sit through years of sectarian prayer before they may petition their city council about crosswalks. And the only thing that sounds worse than all that is that the Supreme Court may finally need to pick a workable test for when the state crosses the Establishment Clause line, which is something not one of them seems to want to do. Because in a case about protecting unpopular religions, the last thing the court wants to do is decide something, well, unpopular.