Constitution Check: When can prayers and government activity coexist?

National Constitution Center

Lyle Denniston looks at the Supreme Court’s decision to hear a case involving prayers at government meetings, and if the justices possibly have changed their opinions in recent years.

THE STATEMENT AT ISSUE:

“Recognizing the potential danger to conscience rights posed by government oversight of worship practices, this court has repeatedly cautioned against government control of prayer content. The adoption of an endorsement test effectively nullifies this line of precedent. An endorsement test requires courts to play the role of theologian, making judgments about the prayers’ validity based on the supposed religious effect they are likely to have on observers.”

– Attorneys for the town of Greece, New York, in appeal papers asking the Supreme Court to rule on the constitutionality of opening the local governing body’s public meetings with prayers recited by local clergy. The court on Monday accepted the case for review at its next term starting in October.

WE CHECKED THE CONSTITUTION, AND…

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Since 1962, the Supreme Court has been quite consistent in the constitutional view that prayer is a form of religious devotion that belongs in private settings—the home or the worship center—not in the halls of government. It broke with that consistency some 30 years ago, when it allowed prayer with decidedly religious content to be recited by a paid chaplain at the opening of a state legislature’s sessions. It said that was different, historically. After that, its skepticism about official prayer returned and has continued.

On Monday, the court signaled its willingness to reopen the entire issue of prayer in the public sphere, as a question under the First Amendment’s Establishment Clause. Just as the  justices have slowly grown more tolerant of government displays of the 10 Commandments, especially if those exhibits have been in place for many years, they may now be pondering a greater acceptance of official prayer—if it occurs in a setting where most of the audience is made up of adults.

A defining feature of most of the court’s rulings against prayer rituals is that they have come in the public school setting, where the audience is composed of impressionable youngsters. What has emerged in the most recent rulings—a decision in 1992 against officially sponsored prayers at a public middle school graduation, and a 2000 decision against such prayers at a high school football game—is the court majority’s concern that younger students may be coerced into conforming to a dominant religious theme, and, if they are of a different faith (or of none), will feel isolated and hurt.

In a word, that reaction reflects the fear of coercion—that is, the government sending the message to go along with religious dogma. The coercion theory under the Establishment Clause has been most identified with Justice Anthony M. Kennedy.

There is a rather subtle difference between that theory of coercion and another theory that the court has sometimes used in trying to keep religion and government separated: the theory of endorsement. That theory is closely identified with the work of retired Justice Sandra Day O’Connor.

That, too, is about government sending a message: When government appears to be sponsoring a creed linked to one faith alone, it is said to be passing the word that this is essentially the official religion. Appearances count more under that theory than they do under coercion theory, which involves the implied taking away of choice.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

When the court agreed to hear the new prayer case from the city of Greece, New York, a community of about 100,000 people near Rochester, it stepped into a case in which a prayer practice at the opening of the town board meeting was struck down by a lower court using the endorsement theory. And, by granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.

Here is the way the appeals court summed up its ruling in the Greece town board case: “Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.” What is forbidden, it went on to say, is a prayer practice that expresses “an official town religion.”

It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.

That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.

It would have been easy enough for the court to have passed up the Greece town board case, and stayed on the sidelines of the prayer controversy as it has for the past 13 years. It very well may mean something that it has decided to return to the fray, in a case where the appeal is so heavily focused on a challenge to the entire endorsement theory against official prayer.

In coming months, this case is sure to draw a heavy involvement by outside groups of many different persuasions, seeking to shape where the court goes from here on prayer.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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