Prayer case at the Supreme Court: Debunking some myths

Two women filed suit against the town board of Greece, N.Y. for beginning monthly business meetings with Christian prayer.

Americans United for Separation of Church and State has represented two courageous women from Greece, N.Y., since 2007 when they came to us for advice about how to deal with their town board, which began all of its monthly business meetings with a Christian prayer.

Susan Galloway and Linda Stephens, respectively Jewish and atheist, found this deeply disturbing. They said it created an atmosphere in which they felt like second-class citizens based on their views on the God question.

All efforts to negotiate a reasonable settlement of this matter failed, so we filed a lawsuit in 2008. This week, that suit ended up in the chambers of the U.S. Supreme Court.

I cannot recall another case in which so many red herrings have shown up in television studios and, yes, even during Wednesday’s oral argument at the court. If public venues were the sea, these false fish would have changed the clear cerulean blue to purple.

On Wednesday, the marshal of the Court opened the day’s proceedings with the words: “God save the United States and this honorable court.” Herring one: isn’t this a prayer before a governmental body just like what is happening in Greece?

Not quite. This platitude at the beginning of the Supreme Court’s morning is a genuinely longstanding practice instituted by Chief Justice John Marshall in the early 1800s. Frankly, it has essentially lost any spiritual significance from its repetitive use. Even if this practice should be deemed constitutionally permissible based on its historical roots, there is no such hoary background in Greece. Until 1999, the town council began its sessions with a respectful moment of silence. A board supervisor unilaterally changed the practice and instituted spoken Christian prayer.

But wait, notes herring two, every prayer since 1999 was not Christian; even a Wiccan gave a blessing once. Indeed, although the council apparently couldn’t find a rabbi, a Jewish person who knew a few prayers gave them twice, a Wiccan spoke once and a local Baha’i leader appeared as well.

The funny (and the legally important) thing is that invitations to non-Christians only arrived as the lawsuit became imminent. Within a few months, the Greece board went right back to its default policy of Christians only. The bottom line is that only a handful of the prayers uttered between 1999 to the closing of the official record in this case were non-Christian.

Herring three: Thirty years ago in a Supreme Court decision named Marsh v. Chambers, the court upheld the Nebraska legislature’s practice of hiring a chaplain to give prayers on the floor of the legislature, so Greece prayers must be fine, too.

There’s more to the story. In Nebraska, according to then-Chief Justice Warren Burger’s opinion, the chaplain’s prayers were “non-sectarian.” I believe that was highly significant for him and his five colleagues who upheld the practice.

Greece’s invited clerics, by contrast, fill their prayers (and some commentaries that read more like mini-sermons) with exclusively Christian beliefs including references to the resurrection, the “saving sacrifice of Jesus Christ on the cross,” the working of the Holy Spirit, the significance of Pentecost and so on. Some of the prayer-givers even had the audacity to not very subtly critique opponents of legislative prayer.

But if there are “non-sectarian” prayers, herring four sputters, there will have to be “prayer police” to determine if a prayer is sectarian or not. Justice Antonin Scalia has defined “sectarian” in a way that many of his bench colleagues have also endorsed: It can be monotheistic, but it can’t specify “details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world, are known to differ (for example, the divinity of Christ).”

Many theologians would quite convincingly argue that an assumption of “one God” is itself sectarian, but the court has set a different floor on that definition. Thirty-seven states have guidelines for chaplains and/or guest prayer-givers that at the very least strongly suggest (if not require) non-sectarian prayers, as do the guidelines of the U.S. House of Representatives, which note that the body consists of “members of many different faith traditions.”

A review of recent U.S. Senate prayers shows only 5 percent mentioning Jesus. Somehow, all of these bodies have found a way to have the preachers, pastors, priests, and imams before them limit the content of the prayers without generating a constitutional crisis of conscience. As a member of the clergy, I know what “non-sectarian” means and so does every other person of the cloth.

The fifth herring then arises: If the Supreme Court rules against Greece, it will put an end to prayers before the U.S. Congress. Not true. If you visit the gallery of the House early on a day the body is in session, you will look down upon the chaplain uttering a prayer of no more than 150 words (by its guidelines), specifically not with “any intimations pertaining to foreign or domestic policy” (also noted in the guidelines) to a virtually empty chamber.

Even if you are uncomfortable, no one will notice if you leave or do not bow your head up in the balcony. In addition, you will not be asked to come down to the floor to promote some cause of personal interest.

In Greece, however, if you are one of the handful of people who show up for the council meeting, you are probably there to make a case to the board during the prescribed time for such entreaties: You need a zoning variance for your small business, your child with disabilities needs special assistance, the neighborhood park needs cleaning up, the cable television service needs to be changed, etc. You will need a majority vote and you will be noticed – and indeed singled out – if you happen to reject the prayer-giver’s invitation to “bow your head,” “join with us” or “stand up.” What attorney would counsel a client to make herself known as a person not going along with the crowd as she, moments later, seeks special help from that body?

Also, if you visit Congress, you will note that the chaplain isn’t looking at you. He’s looking at the handful of members who actually show up to listen to him. That call to divine assistance is an “internal act” for those who hired him. In Greece, the prayer giver is not looking at the board; rather, the podium with the town of Greece seal on it, is facing the residents there because the prayer is for them. It has become a governmental invitation to accept Christian theology.

So, if the Town of Greece v. Galloway case is resolved in the favor of our clients, many things will not change. The House chaplain will not be fired. We will not need to sandblast any references to God from the walls of monuments in Washington. Greece politicians will still be able to pray – by themselves or in groups in their chambers or in the hallway before the business of the day begins. They can, in other words, pray in private just like that fellow Jesus reportedly urged them to do. (You can read about it in Matthew 6:6).

Image courtesy of Jan Smith.

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  • MONTYMOOSE

    opps in my previous post,, meant to say IS “NOT” GOING TO BE THE WINNING ANSWER!!

  • Simple Steps of Faith

    I find how freely the word “force” is used in discussing separation of church and state. The founding fathers of our country were concerned about miss use of power, based upon the heavy handed authority attempting to control beliefs and ideologies. Prayer before gathering of political leaders offers no desire to control religious beliefs, to regulate faith.

  • leibowde84

    It shows an endorsement of a religious belief in supernatural forces by our government actors. That violates the establishment clause of the constitution.

  • Joel Hardman

    Government prayer also presumes to take from the individual the right to decide who to pray to and how. Why would anyone want that?

  • SimonTemplar

    The First Amendment:

    CONGRESS shall MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    It seems to me that this amendment is very carefully aimed at a specific branch of our government.

    Leftists argue that the founding fathers never expected us to maintain their same worldview (with regards to the rights the founders wrote into the Constitution). They say that the Constitution is fluid and changeable. Not just amendable, but that the very text can be reinterpreted to fit our times.

    We know they apply such reasoning to religious freedom of the establishment clause. I wonder if they apply that same reasoning to the “freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    But of course they do. As I said earlier, we have much history of leftist controlled governments that have proven they do not value such freedoms. They will tell us in the beginning that they value all of these freedoms. They will even argue that the very reason they are fighting this fight is BECAUSE they value our Constitution. But look at history. Once they have removed one freedom or right, they move right on to the next one.

  • Catken1

    “Once they have removed one freedom or right, they move right on to the next one.”

    Says the man pouting because he’s had his “freedoms” to tell other people what to do and demand that they run their lives according to his faith taken away.
    Freedom of speech is just fine – but it belongs to everyone, and government should not privilege Christian speech above that of other religions, or no religion. Not being given a privileged platform to preach and pray in a government setting, a platform that others do not have equal access to, is not abridgement of your “freedom of speech”.

  • Catken1

    “Prayer before gathering of political leaders offers no desire to control religious beliefs, to regulate faith. ”

    Suuuure it doesn’t. It tells citizens what sort of prayers are approved by government, and seeks to push them into praying in order to be able to freely petition their government, but it doesn’t “control” or “regulate” anything.
    If your legislature began almost every session by asking everyone to rise and make an affirmation that there is no God and never was, and only grudgingly included statements from other religions occasionally, under threat of lawsuit, would you feel that you as a Christian had your freedom of belief and religious practice respected by your government?

  • JohnDearing

    There is a principled answer to the dilemma the Justices face. Keep government and religion separate — prohibit prayer at all governmental functions. “Non-sectarian” prayers are still prayers. There is no such thing as a prayer that is inclusive of all, because all prayer excludes atheists. Government should represent all citizens equally. It is never the proper function of government to conduct religious worship. Government must be entirely secular, and neutral on matters of belief.

  • SimonTemplar

    Ahh but others DO have equal access. The fact that they did not choose to capitalize on that access is not the fault of the town board in this case. The case does not involve the plaintiffs asking to give their version of a prayer only to be turned away in favor of Christians. They don’t even appear to have made an attempt to exercise this right. Instead, they want to take away everyone else’s opportunity to do something that THEY do not seem to value.

    This also is a very leftist approach to most things but is more clearly seen in their economic practices where some people who are industrious have the opportunity to make more money than others. The leftist approach is to say, “This is not fair. Those of us with less feel disadvantaged or marginalized. The wealth of such people should be redistributed and spread to those who do not make as much money.” The result, in the Soviet Union for example, was people standing in bread lines while their comrades in leadership drove by in their limos.

    We won the cold war. Lets not legislate ourselves into the loosing team.

  • SimonTemplar

    In this case, the creative atheist could have volunteered to stand and give a moment of silence (symbolically representing their belief that there is no deity to whom they can pray). Sadly, rather than exercise their equal right to such expression, the decision was to sue so as to take away the rights of others to so express themselves.

    That is because this “fight” is not about equal rights for all and it never has been. It is a leftist attempt, one in a long line of such attempts, to take away a right that has been enjoyed in this country since it’s founding and which helps set this country apart from others. One of the rights that has prompted people from other countries to make the difficult decision and journey and go through a rigorous process to become citizens of this country.

    Congress shall MAKE NO LAW…(see the rest below).

  • Catken1

    “Ahh but others DO have equal access. ”

    No, they don’t. Not when the vast majority of prayers are Christian, and non-Christian prayers are only permitted grudgingly under threat of lawsuit.
    And no one is taking away your right to pray any time you see fit, just your “right” to have government push your prayers on everyone coming before the legislature or the courts. If your opportunity to pray is taken away because government no longer tells you when and where and how to pray, you obviously don’t value your prayers or your religion enough.
    Real equal access involves government staying out of the question, and everyone taking personal responsibility for praying when and as they see fit. But of course, that takes away your privilege of hearing government tell you that your country belongs to religious people, especially those of your faith, and that those of your faith, because you are in the majority, deserve to be heard more often. And we can’t have that – you can’t POSSIBLY be expected to stand up for or live by your beliefs on their own merits, with your own efforts, without having government pat you on the back and tell you how much better you are than those “others” over there. What’s next, expecting you to stand by your marriage and your choice of spouse without government telling you your choice is better than that gay person’s choice over there?

    “This also is a very leftist approach to most things but is more clearly seen in their economic practices where some people who are industrious have the opportunity to make more money than others.”

    And where some who are lazy but lucky manage to make money off of the backs of those who are industrious, and then whine like babies when asked to contribute to the infrastructure that enabled them to make their money. Or even to pay American workers fairly instead of seeking out near-slave labor elsewhere, or not to hide their earnings in tax shelters overseas.

  • Catken1

    Oh, get a grip. You can pray whenever and however you like, just not with government giving sanction to your prayers over other people’s. You can express yourself all you like, you just can’t get the legislature to back up your self-expression and push it on others.

    Is your right to get dressed in the morning being taken away from you because government doesn’t pick out your clothes for you or make a speech before every legislative meeting talking about how great your outfit is? Are you losing the right to eat your meals because government doesn’t spoon-feed you and everyone else the exact sort of pablum you like to eat? Take some personal responsibility for your prayers, and leave the rest of us to express ourselves as we see fit, not as you see fit.

    “In this case, the creative atheist could have volunteered to stand and give a moment of silence (symbolically representing their belief that there is no deity to whom they can pray).”

    Perhaps the creative atheist would rather have seen their tax dollars and their government’s time devoted to actual government business, rather than to religious posturing that’s no business of government’s?

  • 88Paco88

    I have a question which is really rhetorical, not actually looking for an answer. This section of the newspaper is called “On Faith”……why do you have someone like Barry Lynn writing the column? He is not a man of faith, he is against faith, against God, and against the Church of Jesus Christ. Wouldn’t it be more appropriate to label this section “Against Faith” ? Other articles are equally antagonistic to faith in God. It just seems like a misstatement to say that you are speaking “On Faith” when in reality the theme of the section is antagonistic to faith. Let’s call a spade what it really is.

  • Joel Hardman

    Who are you to tell a clergyman that they are not really Christian? What exactly is your problem with Barry Lynn? If you think your words are Christlike, you should probably read the Bible again.

  • symphonic

    Barry Lynn is a anti-Christian zealot who has a very obtuse and twisted view of something which he has not studied. There is no indoctrination or forcible acceptance in choosing to become a Christian. He , sadly, is deluded by so much hatred that everything he says on any topic is now tainted with below average thought and reasoning.

  • symphonic

    In the context of religion, and in the language of the 1700s, the phrase “respecting an establishment of religion” simply referred to “government sanctioned or financed”. It was designed to prevent the government from creating a state-church a la The Church of England. The Congress of 1789 wanted nothing more than to nip in the bud any attempts to create a government-financed or sanctioned ecclesiastical body.

    When the Supreme Court makes statements like “the First Amendment contains no textual definition of ‘establishment”, they are intentionally being evasive, as no textual definition was required in the 1700s, the meaning was clear and oft-used, speaking directly to what were considered the “establishment” churches of pre-revolutionary America, in which all citizens were required to attend, contribute tithing, etc, etc. This is simple history.

    Of course, why should we expect the Supreme Court to know history any better than the average atheist? This interpretation is ever more laughable than the attempts by liberals to spin the 2nd Amendment as applying only to militia, and when these attempts fail, they (much like atheists in the case of religion) attempt to pile on regulations and legal red tape in order to litigate their way to victory.
    If the establishment clause was seriously intended to mean that religious iconography couldn’t be displayed on government property, or a governmental body couldn’t begin with a prayer, then the founding fathers were nothing but massive, throbbing hypocrites, and we should be ashamed of them. These men prayed before every congress, the majority of them mention God at nearly every turn, they allowed religious symbols in and on government property.

  • symphonic

    For all the posturing on the establishment clause, militant atheists seem to have very little understanding of it as written in the Constitution. Much as the Supreme Court has mangled this in the mid-to-late 20th Century, it’s no surprise that modern-day atheists would too, given that its perversion falls in line with their ideology.

    Most on which the militant godless base their outrage has little to do with the constitution, but about further expanding the reach of Everson v. BOE, the 1947 SC decision that has held up over the years in a rather spotty manner. As the constitution says nothing of a “separation of church and state”, the “wall” spoken of by the SC comes from a Thomas Jefferson letter written 13 years after these clauses originated, yet this has been applied in the most nonsensical way imaginable.

  • symphonic

    It would be nice if the militant atheists could keep their story straight. They claim that children should not be exposed to religious views, but nonreligious (or even anti-religious) ones are welcome. When fellow students and private ministries share their religious beliefs after school, the atheists call it “passive-aggressive proselytizing” and “indoctrination.” But when government officials promote anti-Christian dogma during the school day, everything is just fine. So while atheists talk about giving children “all the facts,” they really seek to advance their own lack of values and silence all others. Again, the Constitution allows them to advocate their faith, their values, and their morality. But it also allows Christians to do the same. This is what the First Amendment’s Free Exercise Clause is all about.

  • symphonic

    Our Republic form of government, expressed in the Declaration of Independence, the Articles of Confederation, and finally the Constitution, is based on Judeo-Christian ideology of individualism in our relationship to our Creator, and to each other, and Natural Law which arises from that foundation of deity/creation relationship. It is the Natural Law which gives us the Rights and Liberties expressed in the Bill of Rights, which the government created by the Constitution DOES NOT give us, and therefore cannot be taken away by any law passed within that form of government.

    For a quick review. Most of the fifty-five Founding Fathers who worked on the Constitution were members of orthodox Christian churches and many were even evangelical Christians. The first official act in the First Continental Congress was to open in Christian prayer, which ended in these words: “the merits of Jesus Christ, Thy Son, our Savior. Amen”. Sounds Christian to me.

    Ben Franklin, at the Constitutional Convention, said: “God governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice is it probable that an empire can rise without His aid?”

    “Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation, to select and prefer Christians for their rulers” John Jay

  • symphonic

    I love it when LIARS like Barry misquote the Bible to fit their biased argument against Christianity! Matthew 6 does not tell people to keep their beliefs private, it says do not do “acts of righteousness” before men, to be seen by them in an attempt to make you look good. Don’t give to the needy for the tax write-off or for the service awards. Don’t pray big lengthy prayers to make everyone think you are pious. It DOES NOT say keep your religious beliefs to yourself!

    Keep trolling, Barry. One day you’ll get it right.

  • leibowde84

    Either way, denominational prayer is not appropriate in the governmental forum.

  • leibowde84

    The ruling would in no way deny anyone the right to pray … it would merely deny you the right to pray in certain circumstances where it violates the constitution’s very clear “Establishment Clause.” Further, why do you think that the mere fact that we borrowed Judeo-Christian values mean that we were established as a Judeo-Christian country?

  • leibowde84

    The absence of religion is not “anti-religious.” Science is not a replacement for Religion. It is real … or more appropriately, it is reality. We know that scientific laws and theories exist and are based on evidence. These should be taught to every child.

    Religious ideals should, of course, be taught to our children as well, but, as it would be completely unconstitutional for Public Schools to pick and choose religious theology, they should not be taught in the public forum. Not just Christian and Jewish, but Hindu, Islamic, Buddhists, etc. Parents should not have to deal with instruction showing certain religious beliefs (which cannot in any way be proven) that they don’t agree with as being more accurate than others. I also think it can cause great confusion if our elected officials are seen praying publicily in public buildings, as it might establish the idea that their Christian prayers are correct. Long story short, it is far too dangerous.

  • leibowde84

    The constitution doesn’t say anything about the right to Privacy, but it exists as necessary to support other rights. In the same way, while the intent of the founding father’s might have been limited like this does not mean that it cannot be used to create a barrier between church and state actions.

  • leibowde84

    Wow … you guys are intense. Do you actually think it is innapropriate for people to criticize beliefs?! It is a necessity for faith to be challenged, or it becomes meaningless. The struggle to keep it makes it stronger. The title of this section is “On Faith.” I don’t know where you get the crazy idea that it is reserved for “faith-filled” discussions, but it is merely designated for any topic having to do with faith. In today’s modern world, that is going to mean a lot of articles criticizing faith and the Church. There is nothing wrong with it, and when you react as you have it shows that you are most likely wrong (not that I agree with that at all, but it is the impression it gives). That you are frustrated that you can’t back up your own beliefs with reason … but instead use circular logic (quoting Bible passages, other scripture, and church doctrine) to prove your point. I am a Catholic, but I don’t appreciate it when other believers get offended at challenges to their faith and Church. Defend your Church, don’t just spew hate. If you merely give up and blame others for your own lack of understanding and reason, then you have failed.

  • leibowde84

    Simon, it seems to me that you incorrectly assume that any restriction in prayer is an infringement of the right to freely practice your religion. That is simply not the case. Constitutional rights can be restricted without being infringed. Look at Gun Control for God’s sake. Look at the restrictions on “free speech.” There are many instances when God Given rights are constitutionally restrained.

  • csintala79

    Matthew 6.6: “But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.” Symphonic, this passage doesn’t direct believers to keep their prayers private? A closet is a very private place.

  • csintala79

    They were so godly that they made no reference to god in the Constitution. They were very knowledgeable men on the whole and understood the distinction between “religion” and “denomination.” If they wanted to prevent one version of Christianity from becoming the state religion they would have stated that no “denomination” should be established. By them broadening the restriction to that of not establishing a “religion” they were making a statement about not establishing Christianity over other religions. Maybe the council in Greece could invite a Muslim cleric to lead the prayers and pass out prayer rugs so it would be done properly. And, by the way, the 2nd Amendment couples the right of possession and use of firearms to preservation of militias; there is no ambiguity. The qualification is not added without sanction; it is part of the documents wording.

  • Oldt

    If you have ten thousand regulations you destroy all respect for the law.
    Winston Churchill

  • dproctor

    No one should have to participate in prayer – even so-called “non-sectarian” prayer. As an attorney , I’m glad that witnesses no longer have to swear on the bible before providing testimony.

  • elanda2

    The rulings by the Justices of the Supreme court seem to have a degree of hubris that excludes real life and real life scenarios. We can imagine any scenario, but can that scenario be supported by law?

  • Erik Stubbs

    Red herring 1: separation of church and state. Read your Bill of Rights. Red herring 2: Jefferson’s letter to the Danbury Baptists supports no religious activity in political activities. Red herring 3: Same letter shows Jefferson’s intentions of what he meant in the 1st Ammendment, as Jefferson was in France during the writing of the Constitution and Bill of Rights, both of which were written primarily by James Madison. Red herring 4: Congress (Federal Senate and House of Representatives) shall make no law (an official declaration that is processed as outlined in the Constitution and signed by the Executive Branch) respecting the establishment (says nothing about endorsement) of religion (can’t make a law establishing, can’t make a law unestablishing). Red herring 5: 14th Ammendment was written following the Civil War and has the intent of protecting people (particularly freed slaves) from having basic rights withheld, it had no intention of applying a loose interpretation of the 1st Ammendment to State and local governments. Red herring 6: the author of this article has any concept of either basic English as written in our Constitution and Bill of Rights, nor any concept of objective journalism.

  • Amy Harris

    No Christian and, indeed, no historian could accept the epigram which defines religion as ‘what a man does with his solitude.’ – C.S. Lewis