Supreme Court Case Puts Public Prayer Back In The Spotlight

By Nina Totenberg

Published November 6, 2013 at 3:01 AM EST

The Supreme Court invokes "God" before every public session. Now the justices will weigh whether it is different, as a legal matter, for government meetings to include more explicitly sectarian prayers.

The U.S. Supreme Court hears arguments Wednesday in a case questioning the use of prayer at government meetings. But first, the marshal will ask "God" to "save the United States and this honorable court."

In 1983, the high court ruled that legislatures could begin their sessions with a prayer, as long as there is no attempt to proselytize or disparage any faith, and as long as the process for selecting the prayer-giver is not discriminatory. Since then, dozens of other cases have tested the constitutionality of prayers at government venues other than legislative sessions, with often conflicting rulings in the lower courts. Wednesday's case could produce some guidelines for the future. It involves almost exclusively Christian prayers that took place at one town's board meetings in upstate New York.

Until 1999, the town of Greece, N.Y., opened its board meetings with a moment of silence. But when John Auberger was elected supervisor, he instituted formal prayers, given by a rotating group of clergymen — a group that until 2008 was exclusively Christian. Often prayers were "in the name of the Lord and Savior Jesus Christ who lives with you," for instance.

Two women objected to the prayers at board meetings and sued to stop the practice. One is an atheist; the other, Susan Galloway, is Jewish.

Galloway doesn't object to nonsectarian prayers, but she says that prayers alienate people from their government when they are connected to a particular religion. She has felt uncomfortable, she says, when she does not bow her head or stand as invited to do during the prayers.

"I don't feel like ... I'm welcome at my town government anymore," Galloway said in an interview with NPR. "My grandmother had to leave Russia because of the Cossacks. My father had to leave Germany because of Hitler." She feels strongly that Americans must "make sure that our government and religion are separate, because we are a diverse country." This is necessary, she says, to recognize diversity and "protect the minorities' rights."

Supervisor Auberger is no longer granting interviews, but earlier this year, in an interview with PBS, he explained why he instituted and has fought for prayers at board meetings. "Our Founding Fathers believed in the right for us to pray and have that freedom of expression in prayer," Auberger said, and the town of Greece is simply continuing that tradition. There are no guidelines for what prayers are appropriate, he said, because that would amount to censorship.

So, what if someone were to say, "Believe in Jesus or you'll burn in hell"?

"We could not object," Auberger says, "because our purpose is to allow ... a freedom of expression in their prayer."

The town of Greece has in fact become more diverse in its prayers since the lawsuit was filed in 2008. Among those who have offered prayers are a Jewish layman, the leader of a Baha'i assembly and a Wiccan priestess. But the prayers are still overwhelmingly Christian.

"The houses of worship in the Greece community are predominantly Christian," says lawyer Tom Hungar, who represents the town, and the prayer-givers who volunteer will inevitably reflect that make-up. "But anyone is free to pray," he says, and "the plaintiffs in this case were both offered the opportunity to deliver invocations."

"The plaintiffs don't want to give the prayers," responds Douglas Laycock, who represents those challenging the prayers. The town's claim of equal access, he says, is a myth — the board never announced that all comers were welcome to deliver the invocation, nor does it publicize its policy.

"The prayers here advance Christianity and they proselytize Christianity," Laycock says.

Laycock, a professor at the University of Virginia School of Law and one of the nation's leading scholars in this area, will tell the justices that town board meetings are very different from sessions of the legislature. Often the board meetings include high school classes, community members who are being honored and those seeking action from the board.

"The way these meetings are structured, everyone is drawn into participation in the prayer," says Laycock. "You're either part of the prayer or you're visibly outing yourself as a religious dissenter." Ultimately, the challenge is "about protecting religious liberty for everybody, not just the majority but also the religious minorities," he says.

And if the town wants to have prayers at the beginning of meetings, Laycock contends, it should have guidelines for nonsectarian prayers.

But lawyer Hungar, representing the town, counters that the Supreme Court has said repeatedly that the courts should not be in the business of parsing prayers. "Government is not supposed to be in the business of telling prayer-givers what the content of their prayers should be," he says.

The history of this country, Hungar observes, began with public professions of religion. Indeed, prayers opened sessions of the first Congress — the Congress created by the same Constitution that included, as its First Amendment, a ban on government establishment of religion.