Bad Brief: 23 State Attorneys General Tell Supreme Court That Tradition Justifies Coercive Government Prayer

Remember, not all traditions are good. Just because something has been going on for a long time doesn’t make it right.

The Religious Right and its allies continued to pound away at the church-state wall last week as a group of 23 state attorneys general filed an amicus brief in support of official prayers at government meetings.

As you probably know, Americans United is representing two residents of Greece, N.Y., in a Supreme Court case that will be argued this fall. That case, Town of Greece v. Galloway, will examine the limits of government invocations before meetings and may well determine what the Constitution does and does not allow in terms of official expressions of faith by governing bodies.

If you’re a reader of Church & State, Americans United’s monthly magazine, you already know about the extraordinary effort the Religious Right made to convince the high court to take this case in the first place.

Previously, 50 current and former members of the U.S. House of Representatives, as well as a group of 18 state attorneys general had filed friend-of-the-court briefs in support of the Religious Right agenda. They basically argued that the town of Greece should be able to pray however it wants because of traditions established by Congress in the 18th century and by state legislatures more recently.  

Now, 23 attorneys general are back at it, telling the Supreme Court once again that tradition should compel the Supreme Court to side with the Greece Town Board.  

“The Town’s rotating-chaplaincy practice parallels the historical practices of Congress and other legislative bodies. The U.S. House of Representatives, for example, experimented with a rotating chaplaincy for several years in the midnineteenth century,” the brief said. “In addition, many – perhaps a majority – of state legislative chambers have a long history of using a rotating chaplaincy. Based upon a chaplaincy program dating back more than 188 years, the Indiana House of Representatives begins each legislative session day with an invocation delivered by a volunteer chaplain.”

The brief was submitted by the attorneys general of: Indiana, Texas, Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Dakota, Tennessee, Utah, Virginia and West Virginia.

Even the Obama administration sided with the Religious Right on this one. The Department of Justice submitted its own brief, stating: “Throughout its history, and dating back to the first session of the Continental Congress in 1774, the United States Congress has appointed chaplains to open each legislative day with a prayer.”

What these strange bedfellows seem to have missed is that local boards are fundamentally different from Congress or even state legislatures. The monthly meetings in Greece, for example, are typically only attended by about 10 people each time. Many of these attendees are there to receive an award, be sworn into office, or to ask the board to take some sort of action that will affect their lives.

In such a setting, there is a great deal of pressure to conform and it is impossible for anyone who wants to opt out of a prayer to do so without drawing unwanted attention.

And there’s something else these “friends of the court” should keep in mind.

“I’d like to ask the Christian residents of Greece to stop and think about how it would feel to attend Town Board meetings that opened with Jewish or Muslim prayers delivered by Jewish rabbis or Muslim imams to an audience largely made up of Jews or Muslims who participated in the prayers,” Ayesha Khan, AU’s legal director who will be arguing before Town of Greece v. Galloway Supreme Court, told the Indianapolis Star. “Would you feel unwelcome? Would some of you question whether the board represents your interests? This lawsuit is about ensuring that non-Christians are not put in that position.”

We know it’s hard for the majority to imagine itself as the minority, but if they could do so for even a moment, they might side with us.

Fortunately, AU is not fighting this legal battle alone. Amicus briefs in support of our side are due September, and we hope they will sway some away from the Religious Right’s insistence that “tradition” gives government officials any right to impose religious worship on a captive audience.

Remember, not all traditions are good. Just because something has been going on for a long time doesn’t make it right. We are hopeful the Supreme Court will share that point of view.