Two weeks ago, in the case of Town of Greece v. Galloway, the Supreme Court handed down a monumental decision protecting legislative prayers and those who wish to offer them. The Court also confirmed that it’s okay to say Jesus in public prayers.
You remember the story from the oral arguments last fall. The small town of Greece in upstate New York likes to start council meetings with ceremonial prayer, just like many other towns, most of the state legislatures, the U.S. Congress and the U.S. Supreme Court. These prayers were not extended by government officials, but by local clergy, and anyone from any faith was invited to participate.
Being open to all, no religion was favored in the process, but because most of the houses of worship in Greece happen to be Christian, most of the public prayers happen to be (you guessed it) Christian. Dissatisfied with this arrangement, two non-Christian women retained a powerful Atheist group, Americans United for Separation of Church and State (AU) and sued the town, seeking to eliminate the Christian aspects of Christian prayers.
Under the banner of so-called “separation of church and state,” AU ironically urged a policy that would integrate the two, requiring the government to establish prayer police to review proposed prayers of clergy in advance and excise offending words, like “Jesus.”
This paradoxical position came close to carrying the day, prevailing at the U.S. Court of Appeals for the Second Circuit, and garnering the support of four justices from the Supreme Court. But the majority for the Court held otherwise, ruling that prayers before town council meetings – even those mentioning the name Jesus – did not violate the Constitution.
This decision flows from the last time the Supreme Court considered legislative prayers, in the 1983 case of Marsh v. Chambers. For the majority in that decision, Chief Justice Warren Berger observed “from colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”
Over the last thirty years, vigilant opponents of public prayer have searched out opportunities to challenge or severely limit the impact of that decision, and many feared the Greece case, featuring predominantly sectarian prayers, could cause the current make-up of the Court to view the issue differently.
Thankfully, the Court let history guide them.
“Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions,” found Justice Anthony Kennedy, speaking for the majority.
The opinion did not shy away from the issue of offense, tackling head-on the notion that some could take umbrage to a sectarian prayer. “The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable,” wrote Justice Kennedy. “Adults often encounter speech they find disagreeable.”
Justice Kennedy concluded with a statement that will shape decisions for many years to come: “Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define.”
The Supreme Court got this one right. Just because some might prefer a prayer stated in another way (or not at all) is no reason to censor or edit it. The content of a prayer, like all other speech, must be determined by the person who’s uttering it, not the government.
Any prayer that is altered to extract the name of Jesus – to the Christian – amounts to no prayer at all.