BY TOM STRODE ©2013 Baptist Press 

The U.S. Supreme Court again has ventured into the confusing arena of church-state relations by holding oral arguments regarding prayers before legislative meetings.

The high court heard arguments November 6 in an appeal of a lower-court ruling that invalidated a New York town’s prayer policy for its board meetings. In overturning a federal judge’s opinion, the Second Circuit Court of Appeals in New York City had ruled the Greece, New York, Town Board violated the First Amendment’s ban on government establishment of religion with a prayer practice that “had the effect of affiliating the town with Christianity.”

The justices are expected to announce a decision in the case before they adjourn next summer.

The Southern Baptist Ethics & Religious Liberty Commission (ERLC) and other defenders of the town’s prayer policy contended in friend-of-the-court briefs the practice did not violate the establishment clause. The ERLC argued the policy provided a forum for private citizens to offer prayers that were constitutionally protected and the Second Circuit’s opinion would require judges to make theological decisions regarding the acceptability of different prayers.

Part of the November  6 arguments focused on the issue of whether the prayers at issue constituted a government exercise.

University of Virginia law professor Douglas Laycock, representing two women who sued the town of Greece, said prayer by various clergy, mostly Christian in this case, is a “government function.”

Associate Justice Antonin Scalia disagreed. “I think the average person who participates in a legislative prayer does not think this is a governmental function. It’s a personal function,” he told Laycock.

Laycock denied the goal was no prayer at town board meetings. “We’re saying you cannot have sectarian prayer,” he told the justices. The town should instruct chaplains to “keep your prayer nonsectarian.”

Associate Justice Anthony Kennedy asked Laycock, “[S]o in other words, the government is now editing the content of prayers?”

“Editing the content of government-sponsored prayers,” Laycock replied.

Associate Justice Samuel Alito asked Laycock for an example of a prayer “that would be acceptable” to Christians, Jews, Muslims, Buddhists, Hindus, Wiccans, Baha’i.

One-third of the prayers at Greece’s board meetings would be acceptable, Laycock estimated. Thomas Hungar, a Washington lawyer representing Greece, said the theories proposed by Laycock and his clients conflict with the free exercise and establishment clauses of the First Amendment -- “that it’s not the business of government to be regulating the content of prayer and regulating theological orthodoxy.”

The lawyers referred at different times to Marsh v. Chambers, a 1983 Supreme Court decision that upheld the constitutionality of chaplaincy prayers in the Nebraska legislature.

Greece’s prayer policy is “further from the constitutional line than the state legislature’s practice in Marsh,” Hungar said. “Because there, Nebraska had one chaplain from one denomination for 16 years and yet that was constitutionally permissible, and his prayers were not distinguishable in content from the prayers at issue here during the time that was relevant to the case.”

The Obama administration argued on behalf of Greece, seeking to defend the practice of congressional prayers.

Ian Gershengorn, deputy solicitor general, told the justices the Second Circuit opinion requires courts to decide “when a legislature has permitted too many sectarian references in its prayers or has invited too many Christian prayer-givers.” 

The appeals court’s decision is flawed because, he said, “First, it cannot be squared with our nation’s long history of opening legislative sessions not only with a prayer, but a prayer given in the prayer-giver’s own religion idiom. And second, it invites exactly the sort of parsing of prayer that Marsh sought to avoid and that federal courts are ill-equipped to handle.”

The arguments came after the marshal closed her opening statement with the court’s traditional version of a prayer: “God save the United States and this honorable court.”

Supporters of the constitutionality of legislative prayers expressed hope after the arguments. “While some justices were tempted to parse the words of prayers, the attitude at the end of the day seemed to be: ‘Let’s leave the parsing to the parsons,’” said Michael Whitehead, who co-wrote the brief for the ERLC with his son Jonathan. Both attended the oral arguments.

Michael Whitehead also said in a statement for Baptist Press, “While some justices thought it necessary for government policy to instruct prayer-givers to keep their prayer terms ‘nonsectarian,’ all the justices seemed to agree that it is impossible to get every religious observer to agree with a single definition of ‘nonsectarian.’”