Friday, September 6, 2013

Questioning the Constitutionality of Certain Legislative Prayer

In upcoming weeks, the Supreme Court will decide a significant case concerning issues regarding church and state. The case is called Greece vs. Galloway and it consists of two individuals challenging Greece, a suburb in upstate New York, for opening its city council meetings with prayers from local clergy members. The two individuals are claiming that the opening prayers are an infringement on the Establishment Clause of the First Amendment of the Constitution. “Government should be inclusive,” started 51-year-old Susan Galloway, a woman challenging the town of Greece, “there are people who don’t believe, and they’re a part of this country too.” The 2nd Circuit Court of Appeals ruled that Greece’s practice was unconstitutional on the grounds that the prayers had been overwhelmingly Christian. However, the Supreme Court will take on this case to possibly overturn that ruling.

The town of Greece began their tradition of inviting clergy to speak in the year 1999. Up until 2007, all of the speakers reciting prayers were Christian. The speaker’s message tended to use explicitly Christian language, with frequent references to Jesus Christ. After many citizens were unhappy with the lack of religious diversity, the town of Greece decided to open up their prayers. Wiccans, Jews, and the leaders of the Bah’ai faith delivered prayers over the next two years, but then in 2009 all the speakers were solely from the Christian clergy once again. The plaintiffs were angry that the town arranged to have these prayers, chose the speakers, and required everyone to sit through the prayers to hear the rest of the legislative session.

President Dieter F. Uchtdorf says the prayer at the 2009 Utah Legislature's first session

President Obama and the First Lady Pray
This case is significant because the law regarding legislative prayer has been ambiguous up to this point, however the Supreme Court decided to hear the case hoping to create clarity over the issue. In addition, although Greece vs. Galloway pertains to legislative prayer this case could be the basis for a larger conversation, possibly changing the approach to the Establishment Clause. An extremely noteworthy part of this case would be that the Obama Administration has actually made an official announcement supporting the town of Greece. This fact astonishes many considering most appeal courts and judges do not stand with Greece. The solicitor general of the Obama Justice Department, Donald B. Verrilli, declared that Greece’s chosen practice is constitutional, regardless of the number of Christian references. In addition to that declaration, the Obama administration filed its own brief on the defendant’s behalf agreeing with the plaintiff that prayers cannot be overwhelmingly Christian without unconstitutionally affiliating the government with Christianity.

This case raises the debate whether it is constitutional to have prayer with legislative duties, and if it matters what type of prayer is being practiced. If this case is decided in favor of Greece, the Establishment Clause will therefore embrace the idea of legislative prayer even if it is seen to “favor” one religion specifically. If the court decides in favor of Galloway, the Establishment Clause will still respect legislative prayer, but mandate it to be neutral. That is where it begins to be a slippery slope. What determines prayers as neutral? Who gets to say the prayers? What can they say? The court will have to define a harsh line on what is neutral—a task that may be impossible.

I would agree with the town of Greece, in saying that this specific legislative prayer is constitutional, regardless of any favoring or leaning. In 1983 the Supreme Court decided on a similar case called Marsh vs. Chambers. In this case there was a First Amendment challenge to a permanent minister opening legislative sessions with prayer in Nebraska. Up to this point, the court had interpreted the Establishment Clause to prohibit the government from favoring a religion, or establishing one, for decades; therefore the plaintiffs seemed to have rational reasoning behind their case. However, the court ruled 6-3 in favor of Nebraska, upholding the practice of legislative prayer. The court did, however, make an important exemption stating that there must be religious neutrality in the legislative prayer. Part of the opinion stated that these prayers couldn’t be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” So although Marsh vs. Chambers created a limit on legislative prayer, the court never made a clear distinction on where the line should be drawn.

Therefore, I believe that the plaintiff will have a difficult time making their case, considering the precedent for this case and historical respect our country has for legislative prayer. The question becomes, where is the line drawn? If our government claims neutrality, what about in the Pledge of Allegiance where we all recite “under god?” That phrase including “god” doesn’t seem neutral, especially when some consider themselves to be extremely patriotic and atheist. Therefore I think this case raises another important issue: the courts still aren’t sure whether they can truly endorse religion in general, or whether they must remain strictly neutral—a task that has been proved to be challenging on multiple accounts. 


Sayeh B said...

My initial reaction reading this post was that Galloway's argument was not really legitimate. She claims that she was being forced to listen to these legislative prayers before city council meetings. While it was acknowledged that most of the clergymen who spoke were Christian, that does not imply that they were required to be Christian: any religious leader could spoken (or so that was what I gathered). But Gabby made a good point about how this is a case on a very slippery slope. If the Supreme Court rules that these legislative prayers are constitutional, then the Establishment Clause is basically undermined in that government officials are choosing to endorse one religion over others. If the Supreme Court rules in favor of Galloway and the unconstitutionality of these prayers, then religious leaders from any religion could speak at these city council meetings, and that could open up a bag of worms: how many religions will be recognized and how many speakers will be allowed per meeting? If one religion is excluded from a particular meeting over another, who's to say the council is not showing a preference for one religion over the other? This is going to be a difficult decision for the Court to make, but I think it would probably be most prudent to claim ANY religious proceedings unconstitutional before city council meetings and that there should be no religious precursor to these secular meetings at all. Why does there even need to be a prayer at the beginning of these city council meetings, anyways?

Maddie C. said...

In this case, the legislative prayer technically does not discriminate against any religion. Any type of religious prayer can be led in these meetings; it is just that because most people in this country identify themselves as Christians, this type of prayer has dominated. My argument is that although one can claim that there is equality of religions, this practice emphasizes religion, in general and is not neutral to those who do not participate in religion. Even though I do believe that this practice would therefore be unconstitutional, the fact that a similar case, Marsh vs. Chambers, decided legislative prayer to be constitutional leads me to agree with Gabby that declaring this instance of legislative prayer to be unconstitutional would seem contradictory based on the precedent.