- The Washington Times - Monday, May 5, 2014

A New York town’s practice of opening its government meetings with a prayer does not violate the constitutional separation of church and state, a sharply divided Supreme Court ruled Monday, in a decision that both sides said could signal a major shift in the role of religion in the public square.

The case of Town of Greece v. Galloway, argued late last year, was considered one of the biggest religious freedom cases of the term. Swing-vote Justice Anthony M. Kennedy joined the court’s four more conservative members in the 5-4 decision in favor of the town.

The decision reversed the ruling of the U.S. Court of Appeals for the 2nd Circuit, which held that Greece officials were endorsing Christianity and thus violating the Constitution’s Establishment Clause barring the government from favoring one religion or faith. The “chaplain of the month” at town meetings was almost always Christian and two residents sued, saying the prayers made them feel excluded from the proceedings.

Defenders of the town’s position predicted that the court ruling would have broad implications.

“This case is the culmination of an attack on the way people pray,” said Brett Harvey, senior counsel with Alliance Defending Freedom, which represented Greece, a town near Rochester. “Scores of cases have been filed challenging the way people pray. There are lower-court cases going on right now, where this case will be used to decide those [cases] … taking up a lot of attention with lower courts.”

Justice Kennedy, in his majority opinion, cited the long-held American tradition of public prayers to open legislative and government meetings while holding that the New York town’s practice was nonsectarian and not designed to exclude any residents.

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“Ceremonial prayer,” he wrote, “is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define.”

Hours after the Supreme Court issued its decision, a ban was lifted against prayer before county commission meetings in Carroll County, Maryland. A judge this year ordered the county commissioners to stop praying to Jesus before open meetings after a lawsuit was filed.

“Anytime the Supreme Court speaks with a majority opinion, it has wide-ranging effects,” said David Cortman, a senior counsel for Alliance Defending Freedom. “This sets the standard for quite some time.

Influence debated

Whether the decision could reach other areas of the public domain remains to be seen.

Daniel Conkle, a professor at the Indiana University Maurer School of Law, said the court’s decision could affect gatherings such as school board meetings, but prayer before sporting events would be a different issue.

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The reasoning of the court in its decision suggested that the school board meeting “would be treated equal with a town board meeting and subject to very minimal limitations or restrictions,” Mr. Conkle said.

As for prayer before football games, Mr. Conkle said, the hypothetical was “really not within the zone of this ruling. Whether the court would reach the same result remains to be seen.”

“The open question is whether or not a decision like the one today signals a greater tolerance from the Supreme Court of public prayer, including specifically Christian prayer, in settings not covered by the tradition of legislative prayer.”

In the beginning

The case began in 2008 when Americans United for Separation of Church and State filed a lawsuit against the town of Greece, a suburb of Rochester with more than 90,000 residents, on behalf of Susan Galloway and Linda Stephens.

Ms. Galloway, who is Jewish, and Ms. Stephens, an atheist, protested that only Christians were delivering prayers at town council meetings.

Town leaders countered that they provided the opportunity for anyone to lead the opening prayer at the government meeting regardless of their religion or lack thereof — a practice that dates back to the nation’s founding.

“The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable,” Justice Kennedy wrote. “Adults often encounter speech they find disagreeable.”

Opponents warned that the decision could set a troubling precedent.

Justice Elena Kagan, joined by the court’s other liberal justices, said in her dissent that the town failed to “involve, accommodate, or in any way reach out to adherents of non-Christian religions.”

“So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits,” Justice Kagan wrote. “In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

“The Supreme Court just relegated millions of Americans — both believers and nonbelievers — to second-class citizenship,” said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State. “Government should not be in the business of forcing faith on anyone, and now all who attend meetings of their local boards could be subjected to the religion of the majority.”

• Meredith Somers can be reached at msomers@washingtontimes.com.

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