To understand the oral arguments presented at the Supreme Court in the Greece case that I will discuss in the next post in this series, one needs to look at the reasoning of the Second Circuit Court of Appeals ruling that overturned the practice. Recall that they decided that the ‘history and tradition’ reasoning used to justify the prayers in the 1983 Marsh v. Chambers case was not appropriate for the Greece v. Galloway case and that the court should have used the Lemon test instead, as well as the endorsement test that looks at whether the practice would be seen by a reasonable informed observer to be an endorsement of religion. They proceeded to do so and found that it failed all three prongs of the Lemon test as well as the endorsement test.

But they did not conclude from this that such ceremonial prayers were always unconstitutional, a reasonable but sweeping conclusion that courts have shied away from, probably because of the uproar it would create in a country that is obsessed with religious symbolism. In trying to avoid doing so, their reasoning became somewhat equivocal and muddled. They seemed to be saying that it may be possible to have prayers that walk a very narrow line that would meet the constitutional standard but that the town of Greece had failed to do so.

We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.

What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.

The court went on to say that the line that the government would need to walk with prayer to satisfy the constitutional requirements was so narrow and hard to define that municipalities would be well-advised to abandon the practice altogether because it would be so easy to run afoul of it.

People with the best of intentions may be tempted, in the course of giving a legislative prayer, to convey their views of religious truth, and thereby run the risk of making others feel like outsiders. Even if all prayer-givers could resist this temptation, municipalities with the best of motives may still have trouble preventing the appearance of religious affiliation. Ours is a society splintered, and joined, by a wide a constellation of religious beliefs and non-beliefs. Amidst these many viewpoints, even a single circumstance may appear to suggest an affiliation. To the extent that the state cannot make demands regarding the content of legislative prayers, moreover, municipalities have few means to forestall the prayer-giver who cannot resist the urge to proselytize. These difficulties may well prompt municipalities to pause and think carefully before adopting legislative prayer, but they are not grounds on which to preclude its practice.

So the argument they gave against prayer was more of a practical kind, that it was more trouble than it was worth.

We now see the problem facing the Supreme Court as it discusses the Greece case if, as seems likely, they want to continue allowing prayer in some form. Can the courts come up with guidelines for prayers that meet the requirement of strict neutrality between religions and between religion and non-religion (the high standard set in the 1947 Everson v. Board of Education of the Township of Ewing case and reiterated in the 1968 Epperson v. Arkansas case) or even the lower standard set by the 1983 Marsh case that the prayers do not ‘proselytize, advance, or disparage’ any religion? If such guidelines can be drawn, then how can government agencies at any level see to it that they are followed without running afoul of the other constitutional requirement that the government not censor or otherwise parse the content of prayers or, even worse, dictate the content of the prayers?

It is in the light of these constraints that we will look at the oral arguments in the Greece case in the next post in the series.