The following opinion piece by Mark Rush, Waxburg Professor of Politics and Law at Washington and Lee, appeared in the May 13, 2014, edition of the Richmond Times-Dispatch and is reprinted here by permission.
On Prayer, Court Abandons Practicality
Waxburg Professor of Politics and Law
Washington and Lee University
In Town of Greece v. Galloway, a divided Supreme Court ruled 5-4 that the Constitution allows municipal governments to open their sessions with prayer. The town council of Greece, N.Y. had established a practice whereby it invited all members of the clergy in its jurisdiction to participate in this practice. In this regard, the council sought to embrace all religions and, in so doing, support no faith in particular. It was, indeed, an ecumenical attempt to accommodate the diversity of faiths in the town.
Nonetheless, several citizens challenged the practice as an unconstitutional "establishment" of religion. They argued that Supreme Court precedent forbade any such practice — however benignly conducted — that created a captive audience. Thus, it is unconstitutional to have organized prayer in our public schools, to have organized prayer at public school sporting events and so forth.
Justice David Souter eloquently stated rationale for this stand in the case of Lee v. Weisman (1993) where the court struck down the practice of inviting clergy to open high school graduations with prayer. Souter stated that there was no practical or spiritual reason to mix prayer with official proceedings:
"Religious students cannot complain that omitting prayer from their graduation ceremony would, in any realistic sense, 'burden' their spiritual callings….Because they accordingly have no need for the machinery of the State to affirm their beliefs, the government's sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of Theistic religion."
In Town of Greece, however, the court cited another, earlier decision, Marsh v. Chambers (1983), where it upheld Nebraska's practice of opening its legislative sessions with prayer. There, the court acknowledged that prayer has been part of legislative practice since the Founding and it distinguished between the audience in a legislative chamber and the more captive audiences of, say, public school functions.
One impressive aspect about the Town of Greece decision is that all members of the court agreed that Marsh was the controlling precedent. Yet, the justices divided 5-4 over whether the practice in Greece, N.Y. was constitutional.
In upholding the practice, the court majority opens the door now to a host of disputes. While any observer (however religious) might agree that the practice is benign, it nevertheless gets the state legislature into the business of determining what does and does not "count" as a religion for the purposes of inviting clerics to open sessions. Thus, the town of Greece went so far as to invite a Wiccan priest to open a session in order to demonstrate the ecumenical nature of the council's practice.
Once the state is in this business, it gets entangled with establishment of religion because, at some point, it must draw a line between "religion" and "nonreligion" and, thereby, deny at least one applicant the opportunity to open the legislative session with an incantation. Once this occurs, the disappointed applicant will have constitutional grounds to challenge the prayer practice as an establishment of religion.
In this regard, the court might have taken the more practical route described by Souter. While disappointing those who would have legislatures open their session with prayer, such an opinion would simplify and clarify the law. The court has done this in other instances where, for example, it established the one person, one vote rule and when it required police to recite Miranda warnings when they interrogate an individual. The creation of such judicial "rules" resulted in consternation. But, they did clarify the law.
Clarifying the law is an important part of the Supreme Court's role. From time to time, its precedents clash or can be interpreted in ways that muddy the law's meaning. In Town of Greece, the court has muddied the legal waters by inviting governments at all levels to get into the business of defining religion in the absence of any constitutionally set criteria for doing so. The result now is that legislatures will be obliged to fashion their own criteria (thereby entering constitutionally forbidden grounds) or open their proceedings to any and all comers who wish to open them with an invocation to any deity or deities.
Our constitutional history is replete with controversies concerning the relationship between church and state. The court has yet to craft rules that clearly demarcate how that balance is to be measured. Its case law contradicts and meanders. Yet, the court has had success when taking practical approaches to thorny constitutional issues. In Town of Greece, it abandoned practicality. This will ensure more confusion and controversy.