Prayer case at the Supreme Court: Debunking some myths

• By Barry W. Lynn

• November 11 at 6:43 am

Religious activists pray following oral arguments in the case of Town of Greece v. Galloway dealing with prayer in government, outside the Supreme Court in Washington, DC, on November 6, 2013. The case deals with whether holding a prayer prior to the monthly public meetings in the New York town of Greece violates the Constitution by endorsing a single faith. AFP PHOTO / Saul LOEBSAUL LOEB/AFP/Getty Images

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).

Barry W. Lynn is executive director of Americans United for Separation of Church and State.


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