Richard Wolf, USA TODAY
WASHINGTON The Supreme Court struggled Wednesday to endorse the centuries-old tradition of prayer at government meetings in the face of increased secular sensitivity.
After listening to the court marshal intone, "God save the United States and this honorable court," the justices tried to justify a New York town's practice of having mostly Christian clergy deliver sometimes strikingly sectarian prayers.
A majority of conservative justices clearly didn't want governments to get more involved in parsing which prayers are OK and which go too far toward endorsing one religion or coercing members of the audience. That bodes well for the town, which defended its practice based on more than two centuries of U.S. history.
But the case, Town of Greece v. Galloway, appeared to be a difficult one for several justices. They sought to balance that history against the town's often explicit prayers, and they worried that strict guidelines on prayer-givers such as those used by Congress and many state legislatures might be worse than the town's anything-goes policy.
Justice Anthony Kennedy, who could be the swing vote in the case, worried that enforcing standards for clergy to follow would involve governments in "censorship" and "the approval or disapproval of prayers." In such cases, he said, "This involves government very heavily in religion."
And Justice Elena Kagan, who like several of the court's liberal justices was clearly bothered by the predominance of Christian prayers in Greece, agreed coming up with a solution was not "an easy question." When the high court intervenes in matters of church and state, she said, it always seem to make the problem worse.
The legal tussle began in 2007, following eight years of nothing but Christian prayers in the town of nearly 100,000. Susan Galloway and Linda Stephens, a Jew and an atheist, took the board to court, contending that its prayers aligned the town with one religion. Their brief to the high court is replete with video clips of Christian clergy referring to Jesus, Christ and the Holy Spirit.
Once the legal battle was joined, town officials canvassed widely for volunteer prayer-givers and added a Jewish layman, a Wiccan priestess and a member of the Baha'i faith.
In its brief to the court, the town argues that a municipality's demographics can cause such disparities, which "merely reflect the freely held and constitutionally protected religious beliefs and opinions of the people." It notes that the high court's 30-year-old precedent, Marsh v. Chambers, only prohibits advancing or disparaging a particular religion.
That case upheld the Nebraska Legislature's funding of a chaplain who delivered daily prayers. Chief Justice Warren Burger ruled in Marsh v. Chambers that such prayers were "part of the fabric of our society."
Thomas Hungar, the town's attorney in court, argued that Greece's mix of prayer-givers was less sectarian and less coercive than Nebraska's use of a single paid chaplain.
Since Marsh, however, backers of church-state separation have made modest gains. In 1984, Justice Sandra Day O'Connor's "endorsement test" established that every government practice must be judged to determine whether it endorses one religion. In 1989, the court ruled that a Christmas crèche display on a courthouse staircase went too far by endorsing Christianity and brought forth O'Connor's "reasonable observer" test. O'Connor was in court for Wednesday's arguments.
The current court, with its 5-4 conservative tilt, agreed to consider the case following a federal appeals court's ruling against the town. Judge Guido Calabresi of the 2nd Circuit Court of Appeals said its actions "virtually ensured a Christian viewpoint" and featured a "steady drumbeat of often specifically sectarian Christian prayers."
Galloway and Stephens say they have felt "isolated, embarrassed and humiliated" at sparsely attended town board meetings because they do not participate in the prayers. "Pairing coercion with sectarian prayers makes the town's practice doubly unconstitutional," their brief says.
The two women note that just 76% of the U.S. population identifies as Christian. "A quarter of the population nearly 89 million Americans cannot be dismissed as hecklers," they argue.
The case has attracted more supporting briefs than any other on the court's 2013-14 docket. The town enjoys a 2-to-1 advantage in backers, including 34 U.S. senators and 85 House members, nearly all Republicans.
To the chagrin of the challengers, the Obama administration came down forcefully on the town's side most notably because both houses of Congress have opened with prayers since 1789.
"We had a responsibility, in the interests of the United States, to ensure that we do what we can to protect the legitimacy and constitutionality of that long-established practice," Solicitor General Donald Verrilli said in a recent interview with the website Scotusblog.
While the prayers offered there and in many state legislatures are subjected to guidelines, however, Greece officials defend their anything-goes policy as more clearly separating church and state.
In the federal government's brief, Verrilli agrees. "Neither federal courts nor legislative bodies are well-suited to police the content of such prayers, and this court has consistently disapproved of government interference in dictating the substance of prayers," he argues.
If the town and others like it are forced to censor the prayers, "then we really are going to have an approved list of prayers," says Michael McConnell, a former federal appeals court judge who directs the Constitutional Law Center at Stanford Law School.