Like many observers, I was puzzled by the decision of the US Supreme Court to accept the case in which in 2008 two citizens of the town of Greece in upstate New York (Susan Galloway who is Jewish and Linda Stephens who is an atheist) sued the town council for beginning its monthly meetings with a prayer. As I said in the first post in this series, there was nothing in this case that seemed to exceed the boundaries established by the precedent 1983 case of Marsh v. Chambers and since those prayers were ruled constitutional, then one would have expected these to be too. The District Court ruled in 2010 in just such a manner but in May 2012 the Second Circuit Court of Appeals surprised everyone by unanimously overruling the District Court verdict, and the US Supreme Court took up the case, hearing oral arguments in November 2013.

The Supreme Court had the option of simply reversing the Appeals Court judgment and sending it back to them to rule according to Marsh. The fact that they decided to go beyond that and have a full hearing suggests that the judges who voted to take the case intend to use this case to make a major statement about the Establishment Clause. We will never know for sure what drove the court to take the case and what follows in this series of posts are my own speculations about possible motives and the eventual outcome.

The catch is that it requires only four votes among the nine judges to accept a case and we are not told who they are or why they took it, leaving a lot of room for speculation as to motives and intent. Some (including me) thought that this may be one of those cases where the court realizes later that it made a mistake in accepting the case and will punt on the issue until a better case comes along. Having thought long and hard about it and read some of the precedents and filings and oral arguments, I now think that was a mistaken conclusion on my part. I think that this case may turn out to be a major Establishment Clause case and in this series of posts I will try and explain why. My apologies to those readers (especially those in other countries) who are not too fond of detailed discussions of US constitutional issues but I think that this case raises important issues of how to negotiate the boundaries between secular government and religion that can provide insight on how to deal with such issues.

We need to go into some detail about what happened. The facts of the Greece situation were partly discussed yesterday. The complaint by Galloway and Stephens was rejected at the District Court level in 2010, with the judge saying that there was no evidence that the town had intentionally excluded non-Christian prayer givers and that the Supreme Court had ruled (in Marsh) that denominational prayers were constitutional. That verdict was appealed and on May 17, 2012 the Second Circuit Court of Appeals overruled that decision. In their appeal, Galloway and Stephens had dropped one of their original charges that the town intentionally discriminated against non-Christian prayer givers, leaving as the main issue in dispute as to whether the town’s prayer practice had the effect, even if not the purpose, of establishing religion.

In its ruling, the Appeals Court summarized (footnotes and citations omitted) the nature of the prayers that had been given in Greece.

In all, there were roughly 130 different invocations between 1999 and June 2010, of which more than 120 are contained within the record. The invocations in the record typically gave thanks for aspects of the life of the town and requested assistance with the ongoing project of town governance. After being introduced, prayer-givers tended to begin with some variant of “let us pray,” and then to speak about the matters for which “we” pray, ostensibly on behalf of the audience or the town more broadly. Members of the audience and the Board have bowed their heads, stood, and participated in the prayers by saying “Amen.” On a few occasions, some members of the Town Board have made the sign of the cross.

A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.” Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ’s name. Typically, prayer-givers stated something like, “In Jesus’s name we pray,” or “We ask this in Christ’s name.” Some prayer-givers elaborated further, describing Christ as “our Savior,” “God’s only son,” “the Lord,” or part of the Holy Trinity. One prayer, for example, was given “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.” Other prayers, including ones not expressly made in Christ’s name, spoke of “the role of the Holy Spirit in our lives,” and celebrated Christ’s birth and resurrection.

The remaining third of the prayers spoke in more generically theistic terms. Christian clergy delivered prayers referring to “God of all creation,” “Heavenly Father,” and God’s “kingdom of Heaven.” The lay Jewish prayer-giver spoke of “God,” the “Father,” and the “Lord”; he also referenced, at one point, “the songs of David, your servant.” The Baha’i prayer-giver referred generally to “God,” concluding his prayer with the Baha’i greeting, “Alláh-u-Abhá,” which loosely means “God the All Glorious.” Finally, the Wiccan priestess invoked Athena and Apollo; she stated these were fitting deities given the Town’s name.

So given the Marsh precedent where prayers exclusively in the Judeo-Christian tradition had been given by a single paid denominational chaplain for 16 years had been ruled constitutional, how did the Appeals Court decide that this seemingly more liberal practice was unconstitutional?

To understand how they got there in seeming contradiction to Marsh, we need to look a bit at the history of cases involving the Establishment Clause, and I will do this in the next post in the series.