I’m wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side.
The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.
Would that be permissible?
—Justice Elena Kagan
In Town of Greece v. Galloway, the Supreme Court is considering what may become a landmark decision on the constitutionality of prayers at town council meetings. At oral argument, Justice Kagan began by asking the question quoted above raising the hypothetical of whether an obviously Christian prayer (similar to the ones actually at issue in the case) would be allowed at the start of a Supreme Court session. The lawyer for the town fumbled the question (the answer is probably no), and for the next sixty minutes it seemed like the Justices would have preferred to be doing almost anything other than deciding this case. In fact, towards the end of the argument, Justice Kagan uttered the following sobering and depressing comments: “Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”
In Greece, New York, as in many other places around the country, the town board begins its monthly meetings with a prayer. While the audience members—including town residents and employees with matters pending before the board—bow their heads or join in, a chosen “chaplain of the month” delivers an invocation before the governing body’s business begins. The Town has had no formal policy for selecting this chaplain, but by regular practice, a municipal employee solicits volunteers from among those religious groups listed in the community guide and local newspaper. Until 2008, the list included only Christian organizations. And, although no town official reviews the content of the prayers before they are delivered, a “substantial majority” of those given have “contained uniquely Christian language.” Two town residents objected to the practice in 2007, and they filed suit when their complaints went largely unheeded. Eventually, the Second Circuit concluded that the prayers “impermissibly affiliated the town with a single creed, Christianity,” and in the spring of 2012 the Supreme Court granted certiorari. Then, in a development few saw coming, the United States filed an amicus brief in the summer of 2013—in support of the Town.