The Obama administration has taken sides in a significant new test case on the separation between church and state, urging the Supreme Court to allow prayers at the beginning of government meetings. The administration lays out its arguments in a newly filed amicus brief in Town of Greece v. Galloway, a case that questions whether the prayer practices at town council meetings of a small town in upstate New York violate the First Amendment. The case could drastically expand the types of legislative prayer practices considered constitutional.
Greece, New York, with its approximately 94,000 residents, has a five-member Town Board that conducts official town business at monthly public meetings. Before 1999, the board opened these meetings with a moment of silence. In 1999, the board’s supervisor changed the practice and started inviting local clergy to offer an opening prayer.
The board lists the prayer in each meeting’s official minutes, but it insists it does not review the language of any prayer before it is delivered nor does it censor any prayer for content. As of 2010, the Town Board had not adopted any written policy governing its selection of prayer-givers or any other aspect of its opening prayer practice; but according to the briefing, as a matter of practice, an employee in the Office of Constituent Services would invite local clergy to deliver opening prayers. Initially, town employee solicited clergy by telephoning all the religious organizations that were listed in the local community guide, which is published by the Greece Chamber of Commerce. The employee later compiled a “Town Board Chaplain” list of individuals who had accepted invitations to give prayers. That employee and her successors would then select guest chaplains by calling individuals on the list approximately a week before each meeting until they found someone willing to deliver a prayer.
Until 2008, the list included only Christian congregations and clergy. Nearly, but not all, of the religious congregations located within petitioner’s borders are Christian. A map introduced into evidence during the lower court proceedings shows one Buddhist temple and one Jehovah’s Witness church located in the town’s borders and several Jewish congregations located just outside of its borders. Nothing in the record indicates that any of those organizations were listed in the community guide. Additionally, from 1999 through 2007, every individual who delivered a prayer at a Town Board meeting was Christian.
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The practice was eventually challenged by residents who argued it was a violation of the First Amendment’s Establishment Clause. The lower court disagreed and upheld the practice. But the federal appeals court reversed the decision, holding that when the “totality of the circumstances” of the town’s practice was examined, “the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint.” In the appellate court’s view, the town’s practice of inviting clergy almost exclusively from places of worship located within its borders “virtually ensured” that “a Christian viewpoint” would be represented by prayer-givers.
In its brief, the Obama administration does more than just defend the historical practice in Congress of opening daily sessions with prayers. It goes one step further to provide a complete embrace of religious-oriented prayers at government meetings, with one caveat. It’s a significant position for the administration to take given the multitude of policy battles it’s embroiled in over its alleged hostility toward religious rights. But much like its negotiations with members of the religious right over contraceptive coverage, the administration takes pains to accommodate religious beliefs and assumes a level of good faith simply not supported in the record. The administration argued in its brief:
Where, as here, legislative prayers neither proselytize nor denigrate any faith, the inclusion of Christian references alone does not constitute an impermissible advancement or establishment of religion. So long as the goal of the government-backed prayer is not to recruit believers or criticize a given faith then the practice should be supported. 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.
The Obama administration is not alone in weighing in on the case. Attorneys general in 23 states, including Indiana and Texas, have also filed briefs urging the Supreme Court to uphold prayer in government meetings.
The Court has not yet set a hearing date for this case.