- The Washington Times - Thursday, June 26, 2014

The U.S. Supreme Court’s upholding of a town’s longstanding practice of prayer before government meetings was seen by many as a victory for religious liberty, but even advocates can’t pinpoint exactly how the case will affect the future of religious freedom.

In a 5-4 decision last month, the justices ruled that Greece, N.Y., did not violate the Constitution by opening its government meetings with a prayer.

Thomas M. Johnson Jr., an attorney who worked closely with the legal team on the Town of Greece v. Galloway case, called the decision a “significant victory for friends of religious liberty.” But during a talk Wednesday at the Family Research Council, Mr. Johnson admitted that questions remained.

“Will the [decision] be interpreted narrowly, or as a significant and necessary course correction?” he said. “The issue in a lot of these cases is whether or not we’re going to respect individual freedom.”

Mr. Johnson said the country would likely start to see different ways in which states and localities handle the question of religious freedom.

“What’s good for San Francisco might not be good for the town of Greece,” he said, adding that the answer should be reflective of each community.

Other possibilities for future cases could involve privately funded memorials on public land that incorporate religious imagery, holiday displays, or hosting non-religious events in a church or synagogue.

Or “judges could say, ‘Well, it’s a unique context just about legislative prayer,’” and the next case to consider “shouldn’t even look at the town of Greece for that reason,” Mr. Johnson said.

The case began in 2008, when Americans United for Separation of Church and State filed a lawsuit against the town of Greece on behalf of two residents who protested that only Christians were delivering prayers at town council meetings.

Town leaders said they provided the opportunity for anyone to lead the opening prayer at the meetings regardless of religion or lack thereof, saying the practice dates back to the nation’s founding.

The Supreme Court decision reversed the ruling of the U.S. Court of Appeals for the 2nd Circuit, which held that Greece officials were endorsing Christianity and violating the Constitution’s “Establishment Clause,” which bars the government from favoring one religion or faith.

David Cortman, director of litigation and senior counsel for the Alliance Defending Freedom, welcomed the ruling, noting that the high court said it is important to look at the historical practice of anything being challenged.

“It’s difficult to say a practice that’s 200 years old is now unconstitutional because of a test framed 40 years ago,” Mr. Cortman said.

A good sign for future religious liberty cases, he said, is that the majority of the justices determined that “offense is not coercive, therefore it doesn’t violate the Establishment Clause. Our hope in this is now that we have five justices discussing the coercion test, it could officially take the place of the endorsement test, which we think is problematic, and certainly unclear.”

Americans United Legal Director Ayesha N. Khan said the narrowness of the Supreme Court’s ruling has created more gray area.

“I think it’s so ambiguous in so many ways,” Ms. Khan said. “Whenever the court issues narrow decisions, so much remains to be determined in the future. In my view it raised a lot more questions than it answered.”

American Humanist Association legal director David Niose said, that while the idea of sectarian prayer at public meeting sounds troubling, there is a positive side that could be applied to future religious liberty issues.

“The decision does seem to suggest political boards must be mindful of being inclusive, allowing minority opinions and minority views,” he said. “Our hope from a political standpoint is the minority voices do get heard.”



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