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Legal Learning: Government-sponsored prayer?

From James H. Manahan, J.D. 

The U.S. Supreme Court, by a 5 to 4 vote, has now ruled that a city council may open its meetings with a prayer. A Christian prayer. Does that mean that we’ll soon be hearing prayers at local council meetings?

There are different opinions in Silver Bay. City administrator Lana Fralich says that council meetings are opened with the Pledge of Allegiance, not with prayer.

“We keep people’s individual religion to themselves, and we deal with government”, she said. On the other hand, Mayor Joanne Johnson told me: “I think this Supreme Court decision is a positive step forward. We need more prayer in this country.”

As for Two Harbors, city administrator Lee Klein says: “Personally, I believe in separation of church and state.” Mayor Randy Bolen could not be reached for comment.

The Supreme Court previously ruled (in 1987) that the Nebraska legislature could open each session with a prayer. However, Chief Justice Warren Burger noted that the prayers in that case were “non-sectarian” and that all references to Christ had been removed from the prayers.

In the 2014 case, however, almost all the prayers at the town council meetings in Greece, N.Y., were specifically Christian. Some elaborated on Christian theology, discussing “the saving sacrifice of Jesus Christ on the cross” and “the plan of redemption that is fulfilled in Jesus Christ.” The audience was often asked to join in saying the “Our Father” prayer and bowing their heads.

For four months in 2007, after complaints by some residents, the town of Greece, invited clergy from other religions to give the prayer. A Jewish man, a Baha’i leader, and a Wiccan priestess who invoked Apollo and Athena were among those who said the prayers. But then for the next 18 months the board reverted to inviting only Christian clergy.

Justice Anthony Kennedy, writing for the majority of the Supreme Court last month, came up with a new test for what violates the Constitution’s establishment clause – whether the prayers are “coercive”. He said there was no evidence that “town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece.”

Joining Kennedy in the outcome were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. It is interesting to note that all five were appointed by Republican presidents and that all five are Roman Catholics.

The four dissenters were Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, all appointed by Democratic presidents, and all Jewish (except Sotomayor, who is Catholic). Justice Kagan said that “when the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. . . . The Town of Greece betrayed that promise.”

After the decision was announced, the American Civil Liberties Union commented.

“Official religious favoritism should be off-limits under the Constitution. Town-sponsored sectarian prayer violates the basic rule requiring the government to stay neutral on matters of faith.” On the other hand, the Alliance Defending Freedom praised the ruling, saying that “speech censors should have no power to silence volunteers who pray for their communities just as the founders did.”

According to Erwin Chemerinsky, Professor of First Amendment Law at the University of California, this new “coercion” test seems to mean that a town could declare itself to be Christian or any religion because that would not coerce religious participation. And certainly if the majority of city council members were Muslim, they can now open every meeting with Muslim prayers.

President James Madison, who helped write the Bill of Rights, made the following comment in 1822: “Religion flourishes in greater purity, without than with the aid of Government.” He even objected to appointment of a chaplain in the first Congress, for fear that they might one day appoint a Catholic chaplain: “To say that his principles are obnoxious or that his sect is small, is to lift the veil at once and exhibit in its native deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.”

The Supreme Court has now taken a big step toward tearing down Jefferson’s wall of separation between church and state.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. The opinions expressed in this column are those of its author.