- - Tuesday, August 20, 2013

In the upcoming term, the U.S. Supreme Court will consider whether legislative prayer, as practiced by the town of Greece, N.Y., violates the Establishment Clause of the First Amendment. The case, Town of Greece v. Galloway, comes to the court after an erroneous decision of the U.S. Court of Appeals for the 2nd Circuit.

Thirty years ago in Marsh v. Chambers, the Supreme Court resolved this issue. The court concluded that prayers to open legislative sessions are OK as long as they do not stem from any impermissible motive and the prayers aren’t being used to proselytize or disparage any faith or belief.

In Marsh, there was a designated chaplain that opened each session. The chaplain was paid with public funds and was a Presbyterian. In the Town of Greece, however, the person giving the opening prayer is not paid and changes each month.

The 2nd Circuit, nevertheless, held that the selection process for the town is unconstitutional. The judges argued that a reasonable observer would conclude that Greece has an official affiliation with a particular religion because “most” of the prayers were by Christians.

Yet the 2nd Circuit itself recognized that “[r]eligious congregations in the town are primarily Christian.” Furthermore, the town never — not once — denied a request to give the invocation. Prayers were offered by those of numerous different faiths, including people who were Jewish, Mormon, Buddhist, “Cherokee Indian,” Jehovah’s Witness, Baha’i and Wiccan. No one disputes that the majority of the prayers were given by Christians, but that could only be expected in a predominantly Christian community.

Sixty-six years ago in Everson v. Board of Education, the first major Supreme Court case involving the Establishment Clause, the court declared the fundamental principle of the clause: The state must only be “neutral” in its relations with religious groups; it does not have to be religion’s “adversary.” Greece was clearly neutral, as it allowed anyone to offer the prayer.

The fact that mostly Christians took advantage of the opportunity to give the opening prayer is irrelevant. In Mueller v. Allen, also decided 30 years ago, the Supreme Court held that a deduction for education expenses that would primarily benefit private-school students was constitutional, despite the fact that 96 percent of such students attended religious and mostly Christian schools.

Implicit in Everson and Mueller, but expressly acknowledged in more recent cases like Zelman v. Simmons-Harris, is the principle that “true private choice” mitigates any fears of the state establishing a religion. When a person voluntarily offers a prayer or seeks a tax break, individual agency intervenes to break the causal chain between the government and religion. In other words, the religion receives public funds because of a private individual’s choice, not because of a government official’s choice. The result is that there is no “imprimatur of government endorsement” of a particular religion.

Finally, because the town allows anyone to volunteer a prayer and has never rejected such a request, the practice should be seen as harmless. In 1992, the Supreme Court struck down another seemingly innocuous practice, namely a benediction at a middle-school graduation.

The court concluded that children were more susceptible to the peer pressure and subtle coercion that might follow from public prayer. The court, however, has never applied that subtle coercion rationale to adults, and adults are the primary audience in town meetings. For adults, the only type of coercion relevant for Establishment Clause purposes is acts backed by a threat of penalty. There is no penal threat for non-Christians in Greece — indeed, non-Christians have the same opportunity to give the opening prayer, and they have done so.

The court should not strike down a practice that was observed by the very people who wrote the First Amendment. Doing so would start the judiciary down a precarious path of scrubbing all vestiges of religion from the public sphere, a job neither required nor recommended by the Constitution.

A.J. Kritikos, 24, is a third-year student at Harvard Law School and a graduate of Georgetown University.

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