- - Wednesday, November 6, 2013

In one of the biggest religious freedom cases in years, Supreme Court justices and attorneys engaged in what one observer called a “very vigorous exchange” over whether a small New York town’s practice of having a prayer before government meetings passed constitutional muster.

The high court heard oral arguments in the case of Town of Greece v. Galloway, with a spirited debate over whether historical tradition is enough to justify having the opening prayer at public meetings, on the line between church and state, and whether any intervention by the court would only make matters worse.

“We heard more than a few justices who were more than skeptical about the government dictating how or when clergy or any citizen is allowed to pray,” said Rob Schenck, president of Faith and Action and a supporter of the town’s right to have the prayer, talking to reporters outside the court after the hourlong arguments concluded.

The court is considering whether Greece, a suburb of Rochester, N.Y., can include ceremonial prayers before all Town Board meetings, delivered almost exclusively by Christian clergy. The tradition continued without protest until early 2008, when residents Susan Galloway, who is Jewish, and Linda Stephens, an atheist, protested that only Christians were delivering prayers at town council meetings.

A decision against the prayer could have a broad impact on religious observances at public events and gatherings across the United States. Prayers before school board meetings, high school athletic events, charity events and many more official and semi-official public gatherings could be put under a legal cloud.

The Obama administration has sided with the New York town.

Justice Elena Kagan interrupted the opening arguments of the town attorney, Thomas Hungar, to ask whether the Supreme Court could open the oral argument with an explicitly Christian prayer from a minister, similar to the prayers offered before Town Board meetings in Greece.

Repeatedly citing the seminal 1983 case Marsh v. Chambers, Mr. Hungar argued that the court has clearly allowed religious prayers before legislative meetings, but not necessarily before judicial assemblies. The Marsh case upheld the Nebraska Legislature’s practice of prayer before its sessions, citing in part the “unique history” of early U.S. practice in allowing legislative prayers.

“The town of Greece has a legislative prayer practice that is consistent with the traditions of this country from its very founding,” Mr. Hungar told reporters after the arguments. “Congress, from the very beginning of our history, has had a legislative prayer practice that is comparable to what the town of Greece has been doing.”

Justice Anthony M. Kennedy appeared to be unimpressed by an argument that legislative prayer should be allowed simply because of historical tradition.

“The essence of the argument is that we’ve always done it this way, which has some force to it,” Justice Kennedy said. “But it seems to me that your argument begins and ends there.”

Mr. Hungar argued that the plaintiffs would require the government to censor prayers and determine what is constitutional and what isn’t, which would be “contrary to our traditions of religious liberty.”

Some of the justices voiced deep concern about having judges or government officials evaluating and even censoring the content of prayers at governmental meetings.

“People who have religious beliefs ought to be able to invoke the deity when they are acting as citizens and not as judges,” Justice Antonin Scalia said.

Douglas Laycock, representing the two women who challenged the prayers in New York as a violation of the First Amendment’s ban on government establishment of religion, said there were important differences between the Nebraska case and the Greece lawsuit.

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