As a member of the U.S. Supreme Court bar, I was able to land a coveted seat for the Nov. 6 oral argument in Town of Greece v. Galloway, Americans United’s challenge to sectarian town board prayers in a New York community.
As I slid into my seat, I glanced at the folks around me. They were a diverse lot. Four nuns in habits sat to my right. To my left was a father and his pre-teen son. They were having a curious conversation that involved trying to guess the identities of all of the famous lawgivers depicted in the stone carving above the chamber. (The dad opined that President Barack Obama may “want to be up there soon wearing battle armor.” Probably not.)
AU’s clients, Susan Galloway and Linda Stephens, were sitting a few rows ahead of me. Our legal director, Ayesha Khan, was right up front with Douglas Laycock, the University of Virginia law school professor who argued the case for us.
It’s unusual for advocates to get out more than a few sentences before some justice interrupts with a question. Doug managed a whopping seven sentences before he was confronted with an inquiry from Justice Samuel Alito.
Alito wanted to know if any prayer could be crafted that would be acceptable to everyone, a theme that was later picked up by Justice Antonin Scalia.
Doug explained that this was likely not possible in the real world, but he reminded the justices that some of their prior opinions had established a few ground rules: A prayer is considered to be “non-sectarian” even if it assumes the existence of one god so long as it doesn’t go further by delving into points on which those monotheistic believers “are known to disagree.” (That is Justice Scalia’s phrase, in fact.)
No one should think this line of questioning from Alito and Scalia is a sign of their deep concern for non-monotheists. The purpose of their grilling was simply to pressure our advocate to concede that there is not, under current law, any fully inclusive remedy for the overwhelmingly Christian prayers directed at attendees of the town council meetings, short of banning all prayers at the meetings. But Doug rightly stood his ground.
I noted in an op-ed for The Washington Post that this argument and enough other “red herrings” could turn a cerulean blue sea purple. Another is the claim that to insist on more inclusive practices would require bureaucratic scrutiny of prayers and “censorship” of content.
Not really. Most religious leaders know exactly what a sectarian prayer is, and if they insist on praying that way and furthering dogmatic theological views at a government meeting, they shouldn’t be invited back.
Thirty-seven states and the U.S. Congress have all kinds of guidelines that govern the prayers their guest chaplains deliver. This has not unraveled the universe.
In addition, it’s worth remembering that the Obama administration filed a legal brief on the side of Greece’s Christian-only prayer policy but conceded that it thought prayers should be permitted only if they do not proselytize, advance or denigrate any religion.
So how would such parsing of prayers be any different than a requirement of non-sectarianism? It isn’t, of course. (During pre-trial questioning of the key town supervisor — who in 1999 replaced a respectful moment of silence with the spoken prayers at issue – he admitted to an AU attorney that he wouldn’t curtail an anti-Semitic remark or a screed against gay people. That’s apparently where no parsing gets you.)
For the record, no one is suggesting that the council members don’t have a right to pray in their chambers (or even as a group, if they are all so like-minded) before they get into the nitty gritty of cable television franchises, unsafe intersections, zoning variances, noise ordinances and the myriad of other legitimate business before a town board.
Our case is about a governmental body that has decided it wants to sponsor public prayers. The ministers are surrogates for the members of that body, and they speak to the small audience gathered at their monthly meetings. That audience usually consists of citizens there to plead a case for some kind of relief for a community need.
The non-participants – the people who need three votes for a proposal shortly after the prayer time but who would rather not stand, bow their heads or “join in” a prayer with which they disagree – will be noticed. And the fear is their pleas for relief will go unfulfilled.
We expect a ruling by the end of June 2014. Whatever the outcome, our legal team did a magnificent job over many months to make the best case under the circumstances of some strange law that preceded it.
One need not get into the weeds of church-state jurisprudence to understand that the prayers at Greece Town Board meetings advance religion and that the prayer-givers frequently coerced citizens to participate.
That’s why the town’s prayer policy is a clear violation of church-state separation. It’s also why the high court should strike it down.
Barry W. Lynn is executive director of Americans United for Separation of Church and State.