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Supreme Court may clarify legal limits on public prayer in government meetings

Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia, is one of the nation's foremost authorities on religious liberty. He is also a Professor of Religious Studies at UVa, and an expert in the area of law known as remedies.

Robert E. Scott Distinguished Professor of Law, and Professor of Religious Studies, Douglas Laycock
The University of Virginia School of Law

Professor Laycock appeared before the U.S. Supreme Court earlier this month for oral argument for the respondents, Susan Galloway, et. al. in the case, Town of Greece v. Galloway.

At issue was: "Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity."

What is at stake here is whether or not the Court will clarify any limitations regarding public prayer in government meetings here in the United States, whether or not those meetings fall under situations similar to the Congress itself, which traditionally have included the officiating by a chaplain to provide that service, whether or not he or she is paid.

At question is whether the practice of this upstate New York town's beginning its meetings with a sectarian prayer – even if it includes a wide variety of representative sects throughout the year – has violated the First Amendment’s prohibition against the establishment of religion:

“Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Douglas Laycock explains:

“We are not asking the court to say that local government meetings cannot have a prayer. This is a case about what kind of prayer they can have and how it is presented.”

Because the prayers are ‘sectarian,’ there are members of the public – such as Susan Galloway, who is Jewish –

Laycock will argue on behalf of two residents of Greece — Susan Galloway, who is Jewish, and Linda Stephens, who is an atheist, who had attended town board meetings in order to raise concerns about the parks and the public access channel. who say they are uncomfortable in what they experience in "attending to" prayers that do not encompass their beliefs. Evidently some of the 'chaplains-of-the-month,' in those meetings have invited them to bow their heads and that others (including those to whom they have come to raise concerns and who are also those who are able to take action relating to those concerns) may take note. Because members of the public may have occasion to make a request of the town government which may require an action of some sort, it does not seem appropriate that they must choose between taking an active part in the prayer – either by joining in or bowing one’s head – and that those meetings traditionally have few members of the public who attend, so when a choice is made not to join in or bow one’s head, it is then more 'noticeable.'

Professor Laycock draws a distinction:

“The conservatives on the Supreme Court have repeatedly joined opinions that say you’ve got to be able to have public prayer in some form, but the tradition is that it’s nonsectarian and it stays away from points on which believers in a benevolent God are known to disagree. We think both sides of the court have endorsed these two principles – that government can’t coerce people and that government prayers need to be nonsectarian.”

In its 1983 decision in Marsh v. Chambers, the Supreme Court upheld the liberty to start legislative sessions with a prayer, pointing out that there was an “unambiguous and unbroken history” of legislative prayer dating back to the First Congress.

Douglas Laycock acknowledges that the Marsh case – which specifically involved the Nebraska legislature – is not really applicable to a local government, since there is no active participation of the public in Marsh; and there were also no sectarian prayers in that case.

“The prayers in Marsh v. Chambers, by the time the case got to the Supreme Court, were nonsectarian. There was a Jewish legislator who had complained three years earlier about Christian references in the prayers. And it was a permanent chaplain, not a rotating system like this, so he was more responsive to the diverse religious views among the legislators. So he had already dropped all those explicitly Christian references.”

The U.S. Solicitor General, however, has filed an amicus brief, In support of the Town of Greece arguing that the appeals court’s ruling that the practice of opening the meetings with its usual prayer practices should be overturned.

Laycock, on the other hand, argues that the Town of Greece could adopt a policy of instructing the chaplains not to include sectarian prayer, for example, or that they could specify that it would no longer be permissible for any of the chaplains to ask that the public join in, or invite participate in any other way.

“Legislative prayer is constitutionally anomalous. Usually the government is not allowed to assert religious views. When it does so in a sectarian manner and in a context in which citizens are likely to feel pressure to conform, we should be concerned about that.”

Professor Laycock explains further:

"Religious liberty is a fundamental constitutional right, but it has become a battleground in the culture wars."

Known for his somewhat controversial concept of 'government neutrality' – as it relates to religious liberty – Laycock argues that the First Amendment must encompass both 'the liberty of belief and liberty of non-belief,' and for this reason, government should be ‘substantively neutral’ and should neither encourage nor discourage religious belief, or the practice of religion.

Recently several cases have come before the Supreme Court relating to the balance of individual religious rights and the rights of society, in the proposed exemption from regulation of the provisions relating to the disbursement of funds for artificial means of contraception, for instance, of the Patient Protection and Affordable Care Act, the United States federal statute signed in to law by President Barack Obama on 23 March 2010.

Some individuals have claimed that they would be forced into a Hobson's choice situation, in which compliance with the law would entail the violation of essential doctrines and long-held principles of their religious belief; and that they ought not to be forced to have to make that choice.

Beginning with two of the founding fathers of the nation – and the founder (and founding Rector) of the Board of Visitors of the University of Virginia -- Thomas Jefferson and James Madison -- more than two centuries ago, had found it challenging to understand how best to balance the rights of the individual and the rights of society in these matters. There are many in the present day as well, who experience a kind of cognitive dissonance with the frequent cultural divisions that these kinds of questions have come to represent.

The fact that the U.S. Congress could have authorized payment for a chaplain to officiate at the opening of each day’s business and also could have passed the First Amendment to the Constitution -- along with what would eventually be referred to as the "Bill of Rights" -- the same week in April of 1789, essentially sums up the nature of the complexity in the formulation of the concept of religious liberty that the Court has thus far clarified for the benefit of Americans, in our nation's history.

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