- The Washington Times - Thursday, October 3, 2013

A small town in upstate New York is at the center of what legal scholars say could be one of the biggest religious freedom cases in decades, as the Supreme Court prepares to open its 2013-14 term next week.

The case, the Town of Greece (N.Y.) v. Galloway, involves the town council’s practice of beginning its meetings with a prayer offered by a volunteer “chaplain of the month” — Christian and non-Christian — and has attracted friend-of-the-court briefs from religious, secular and civil liberties organizations. The surprising decision to take the case and how it rules could offer new insights on how far the court headed by Chief Justice John G. Roberts Jr. is prepared to go to redefine the role of religion in the public square.

A decision in favor of those challenging the city could affect religious observances at public events and gatherings across the United States. Prayer before school board meetings, high school athletic events, local charity events and many more could be threatened.

“If the court were to rule for Galloway, it would have to abandon prior precedent, it would have to abandon hundreds of years of practice going back to the founders of our country, and put in jeopardy the many practices and events that reflect our religious heritage throughout the country,” said David Cortman, attorney for Alliance Defending Freedom, a Christian advocacy organization supporting the town of Greece.

Town of Greece v. Galloway is just one of a number of hot-button cases on the docket. The justices also are set to tackle major cases on federal campaign contribution limits, affirmative action, the president’s recess appointment powers and police search procedures.

The court will look into social issues including abortion, housing discrimination and affirmative action, and a year after upholding the core of Obamacare, the court is likely to challenge the law’s requirement that companies with 50 or more employees provide insurance for employees’ use of contraceptives. Companies headed by religious conservatives are claiming a corporate right to freedom of religion that they say the law’s mandate would violate.

Legal scholars say it is not clear what attracted at least four justices to agree to take on the New York case and how far the court may go.

“As has often been the case under Chief Justice Roberts’ leadership, one of the many interesting and important questions the Galloway case prompts is whether the court will make headlines and turn heads by announcing a big change in its doctrines or will instead disappoint journalists who want news buzz and law professors who need new topics by resolving the matter on narrow grounds,” Notre Dame law professor Richard W. Garnett said in a symposium on the case on the legal website Scotusblog.com.

Mr. Cortman said a ruling in favor of Galloway could have major implications, potentially bringing an end to prayers at presidential inaugurations, the “In God We Trust” motto on the nation’s currency and even the cry “God save the United States and this Honorable Court” at the openings of the Supreme Court’s public sessions.

“The new test would be, ‘If I see or hear something that may offend me, and it happens to be religious, that creates some sort of a constitutional violation. We would have challenges to all of these [traditions],” he said. “That would create not only more disarray, but not reflect the true meaning of the Constitution.”

Both sides say the case involving Greece, a modest-sized city on the banks of Lake Ontario, gives the justices wide latitude to revisit legal questions of the prerogatives of church and state.

In 1999, the town of Greece began to include ceremonial prayers before all city council meetings, with almost exclusively Christian clergy delivering the prayers. The tradition continued without protest until early 2008.

Local residents Susan Galloway, who is Jewish, and Linda Stephens, an atheist, protested that only Christians were delivering prayers at city council meetings. With the help of Americans United for the Separation of Church and State, Ms. Galloway and Ms. Stephens filed a lawsuit in 2008, claiming the prayers violated the Establishment Clause of the Constitution and promoted Christianity to town residents.

“A vast majority of the time, the Christian clergy have delivered explicitly Christian prayer,” said Ayesha Khan, legal director of Americans United. “Meanwhile, the people in the audience are there to petition their government, receive honors or take the oath of office and they are asked to stand or bow their heads for these kinds of prayers that their conscience doesn’t permit them to participate in.”

In their brief to the Supreme Court, the respondents urge the court to reject the precedent set in the 1983 case Marsh v. Chambers, in which the court ruled that most legislative prayer practices did not violate the Constitution.

The respondents also argued that the town of Greece is not neutral in its selection of prayer leaders and heavily Christian clergy, and does not giving “nontheists” the opportunity to speak.

City council members argued that they did not intentionally exclude members of other religions from participating in the prayer sessions, and that audience members were not forced to participate in the ceremonial prayers.

“The folks who have volunteered to pray before the meetings are merely reflective of the demographics of the town,” Mr. Cortman said. “Just because a town may happen to be more Christian than a different religion doesn’t automatically create a constitutional crisis.”

A district court sided with the city council, ruling that there was not enough proof that Greece officials were intentionally excluding non-Christians. In 2012, the ruling was appealed by Americans United, who again argued that the prayers were unconstitutionally sectarian in nature and established Christian beliefs and religion in the town.

“We are not asking the court to eliminate the prayers here. We are asking that people not be pressured to participate in that prayer, and that the prayer be inclusive and nonsectarian so that it avoids reference to details on which people are known to differ,” Ms. Khan said.

The 2nd U.S. Circuit Court of Appeals ruled unanimously in favor of Ms. Galloway and Ms. Stephens, stating that the town’s prayer practice was an endorsement to their religious viewpoint.

The town and the Alliance Defending Freedom took the case to the Supreme Court.

“Americans today should be free, as the founders were, to pray,” Mr. Cortman said. “The Supreme Court has ruled that public prayer is part of the history and tradition of this country. The large number of significant parties that have filed briefs in this case certainly support the continuation of this cherished practice.”

Oral arguments for Town of Greece v. Galloway are scheduled for Nov. 6.

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