November 6, 2013
It’s easy enough to be in favor of a “nonsectarian” prayer before a legislative session — some invocation of a higher power that theoretically doesn’t exclude anyone (besides atheists, that is) — but what exactly does such a prayer sound like?
That was Justice Samuel Alito’s question during oral arguments at the Supreme Court Wednesday morning in the case of Town of Greece v. Galloway, and it got to the heart of the court’s basic discomfort with cases asking it to decide whether specific government-sponsored prayers cross the constitutional line and “establish” religion in violation of the First Amendment.
In Greece, a town of just under 100,000 in western New York, town officials invite local clergy to offer a prayer before monthly town board meetings. The prayers may technically be given by anyone, but for nine years they were exclusively Christian, many using language such as “in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever.” Two residents sued the town under the First Amendment.
Standing before the court, the residents’ lawyer, Douglas Laycock, suggested that a nonsectarian prayer would be satisfactory. Justice Alito wasn’t so sure.
“How could you do it?” Justice Alito asked. “Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus … Wiccans, Baha’i.”
“And atheists,” Justice Antonin Scalia added. “Throw in atheists, too.”
And so it went, the justices trying in vain to determine what sort of prayer, if any, would be sufficiently nonsectarian, and who should be responsible for making that determination. None of them seemed to relish the idea of playing at prayer editor.
As the argument progressed it was increasingly difficult to discern any grounds on which to justify legislative prayer other than the fact that it’s something we’ve always done — which was the basis for the court’s ruling upholding such a prayer in the Nebraska legislature in 1983, when it last considered the question.