November 6th, 2013
12:18 PM ET
By Bill Mears and Daniel Burke, CNN
WASHINGTON (CNN) - Should prayers to God open government meetings?
That's the controversial question a divided Supreme Court debated on Wednesday.
At oral arguments about whether public prayers at a New York town's board meetings are permissible, the high court took a broad look at the country's church-state history and even the Supreme Court's own traditions.
Two local women sued officials in Greece, New York, objecting that monthly Town Board public sessions have opened with invocations they say have been overwhelmingly Christian.
But the case's implications extend far beyond upstate New York and could have widespread consequences, according to constitutional scholars.
"This is going to affect communities across the country," said Charles C. Haynes, a senior scholar at the First Amendment Center.
The frequent court battles over public prayers, Ten Commandment memorials and holiday displays might strike some Americans as silly, but they touch on deep questions about national identity to reach back to the Founding Fathers, Haynes said.
"It's a long struggle in our country about self-definition and what our country was founded to be. That's why we keep circling back to these emotional and highly divisive questions."
At Wednesday's oral arguments, the court's conservative majority appeared to have the votes to allow the public prayers to continue in some form, but both sides expressed concerns about the level of judicial and government oversight over prayers presented by members of a particular faith.
"We are a very religiously diverse country," said Justice Samuel Alito, who worried about the town officials setting up binding guidelines. "All should be treated equally. So I can't see how you can compose a prayer that is acceptable to all these" religions.
But Justice Sonia Sotomayor worried about the effect on local citizens who choose not to stand and bow their heads when asked during a public prayer. "You think any of those people wouldn't feel coerced to stand?"
The high court began its public session Wednesday as it has for decades, with the marshal invoking a traditional statement that ends, "God save the United States and this honorable court."
The town outside Rochester began allowing prayers to start its meetings in 1999, after years of having a moment of silence.
Co-plaintiffs Linda Stephens and Susan Galloway challenged the revised policy, saying officials repeatedly ignored their requests to modify or eliminate the practice, or at least make it more inclusive.
"It's very divisive when you bring government into religion," Stephens said.
"I don't believe in God, and Susan is Jewish, so to hear these ministers talk about Jesus and even have some of them who personally question our motives, it's just not appropriate."
The town of about 94,000 residents counters that after hearing concerns from the two women and others, it sought diverse voices, including a Wiccan priestess, to offer invocations.
Officials said they do not review the content of the remarks, nor censor any language.
"The faith of the prayer-giver does not matter at all," said John Auberger, Greece's board supervisor, who began the practice shortly after taking office 1998. "We accept anyone who wants to come in and volunteer to give the prayer to open up our town meetings."
A federal appeals court in New York found the board's policy to be an unconstitutional violation of the Constitution's establishment clause, which forbids any government "endorsement" of religion. Those judges said it had the effect of "affiliating the town with Christianity."
Congress and state legislatures regularly open their sessions with prayers.
One question before the Supreme Court is whether local government bodies are different, in that there might be more active involvement with local citizens, who may want to personally petition the town in zoning, tax, and other matters.
Justice Elena Kagan explored the limits of permissible government action by using the Supreme Court as an example.
She asked whether the court could suddenly invite a Christian minister to invoke the following prayer, inside the ornate marbled courtroom: "We acknowledge the saving sacrifice of Jesus Christ on the cross." "Would that be permissible?" asked Kagan.
Attorney Thomas Hungar, attorney for the town of Greece, suggested courts were different, and that the national legislature had had similar prayers since the nation's founding.
"Whatever line might be drawn between nonlegislative bodies and legislative bodies," Hungar said, "it would be incongruous, if Congress could have legislative prayers and the states couldn't."
But the lawyer for the plaintiffs, supported by Americans United for Separation of Church and State, said unlike legislatures, Greece had no official policy on prayers.
"The policy should give guidelines to chaplains that say, 'Stay away from points in which believers are known to disagree,'" said Douglas Laycock, who represented the two women objecting to the prayers. "And we think the town should do what it can to ameliorate coercion. It should tell the clergy: 'Don't ask people to physically participate.' That's the most important thing."
But some justices on the high court expressed doubts about the extent to which lawmakers – and later courts – should advise various faiths about what to say, and parse what is sectarian or not.
"Give me an example of a prayer that is acceptable to all of the groups that I mentioned," said Alito, whose list included Hindus, Muslims, and Buddhists.
When Laycock suggested something like, "The prayers to the almighty, prayers to the creator," Alito and others were unconvinced, saying polytheists might object.
"What about devil worshippers?" asked Justice Antonin Scalia, bringing laughter to the courtroom.
"Well, if devil worshippers believe the devil is the almighty, they might be OK with it," responded Laycock, smiling.
"Who was supposed to make these determinations? Is there supposed to be an officer of the town council that will review?" asked Chief Justice John Roberts. "Do prayers have to be reviewed for his approval in advance?"
Justice Anthony Kennedy, who may prove to be the swing vote in his petition, was especially vocal.
"It just seems to me that enforcing that standard involves the state very heavily in the censorship and the approval or disapproval of prayers," he said. "I'm serious about this. This involves government very heavily in religion."
He also suggested small towns deserve as much right to allow a brief prayer in public sessions as federal and state bodies.
"In a way it sounds quite elitist to say, 'Well, now, we can do this in Washington and Sacramento and Austin, Texas, but you people up there in Greece can't do that.'"
Several members of Congress were in attendance at the argument, including Sen. Marco Rubio, R-Florida.
"Every day before the Senate meets, the Senate chaplain comes out and gives a prayer, and that's important to us," Rubio told CNN just after arguments ended.
"It's part of our country's tradition; it's also our constitutional right, to be able to exercise that. And I thought it was important to defend that here today."
Nearly 120 members of Congress, mostly Republicans, along with 18 state attorneys general, have filed supporting legal briefs backing the city. The Obama administration is doing the same.
Stephens and Galloway, the two plaintiffs, said they have faced harassment from their community and even vandalism of their property.
"The pastors face the people (in the meetings), they don't face the town government, so it's like they're praying over us," Galloway told CNN after the argument.
"When they all stood and I sat, and I have a hundred eyes looking at me, and questioning what's going on, they think I'm being disrespectful. It does put a lot of pressure on you and it makes you very uncomfortable. It singles you out, and that shouldn't be in my town government, and it shouldn't be anywhere."
The high court has generally taken a case-by-case approach on determining just when the state intrudes unconstitutionally into religion, while generally allowing faith to be acknowledged in a limited basis in public forums.
"In God We Trust" remains on currency; the Pledge of Allegiance and oaths of office mention a divine creator; and menorah and crèche displays are permitted in local parks.
But the justices acknowledge the tricky line they must walk – politically, socially and legally – when deciding church-state cases.
"It's hard because the (Supreme) Court lays down these rules, and everybody thinks that the court is being hostile to religion, and people get unhappy and angry and agitated," said Kagan near the end of Wednesday's oral arguments.
"Part of what we are trying to do here is to maintain a multireligious 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."
The case is Town of Greece, N.Y. v. Galloway (12-696). A ruling is expected by early summer.
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke and Eric Marrapodi with daily contributions from CNN's worldwide newsgathering team.