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In Another Blow to Separation of Church and State, Supreme Court Rules Town Can Begin Meetings with a Prayer

WASHINGTON (CN) - Town officials from upstate New York did not improperly favor Christianity by starting meetings with a short prayer, the Supreme Court ruled Monday.
     The case stems from the decision by officials in Greece, N.Y., to replace a moment of silence with a short prayer when open monthly Town Board meetings.
     Town Supervisor John Auberger, who typically would call the monthly meeting to order, added the invocation in 1999. At each meeting, he would have the town clerk call the roll of board members, lead the assemblage in the Pledge of Allegiance, and then would invite the "chaplain of the month" to offer a prayer.
     Two Greece residents, Susan Galloway and Linda Stephens, criticized the practice in 2007, saying the prayers aligned the town with Christianity since Christian clergy members most often were invited to participate. They also said the prayers that were offered were sectarian rather than secular.
     After the town responded that anyone could volunteer to deliver the invocation, a Wiccan priestess, a lay Jewish man and the chairman of the local Baha'i congregation were invited to offer a prayer.
     Up until then, though, the majority of prayer-givers were Christian clergy members whose names were on an internally developed list gleaned from the Greece Chamber of Commerce's "Community Guide."
     Galloway and Stephens filed a federal complaint in 2008, claiming that the town's "chaplain of the month" list unconstitutionally preferred Christianity over other faiths, and that the prayer practice was impermissibly sectarian.
     Because the prayers were aligned with Christianity, the women said that the practice established a particular religion in violation of the Constitution. And because the language used in the prayers was unique to a specific religious sect, they claimed that it established religion generally.
     U.S. District Judge Charles Siragusa in Rochester ruled for the town after finding no evidence that Town Hall employees had compiled the list of prospective prayer-givers with the intent of excluding representatives of particular faiths. Citing U.S. Supreme Court precedent, Siragusa also held that the establishment clause does not exclude denominational prayers, which can add solemnity to governance.
     In reversing last year, the 2nd Circuit highlighted the claim that Greece's prayer practice had the unintended effect of establishing religion.
     Citing its 1983 decision in Marsh v. Chambers, a five-justice plurality of the Supreme Court, split along the usual party lines, reversed Monday.
     "From the earliest days of the nation, these invocations have been addressed to assemblies comprising many different creeds," according to the lead opinion by Justice Anthony Kennedy. "These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.
     "The prayers delivered in the town of Greece do not fall outside the tradition this court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a 'spirit of cooperation' among town leaders."
     While Chief Justice John Roberts joined the opinion in full along with Justice Samuel Alito, Justices Kennedy, Antonin Scalia and Clarence Thomas did not join in a section of the 24-page decision that said Greece's prayer "has a permissible ceremonial purpose."
     In an eight-page opinion concurring in apart and concurring in the judgment, Justice Clarence Thomas reiterated his "view that the establishment clause is 'best understood as a federalism provision.'"
     Scalia joined that opinion, as well as a separate 13-page opinion by Alito.
     "Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder," Alito wrote. "It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer.
     "In addition, if a town attempts to go beyond simply recommending that a guest chaplain deliver a prayer that is broadly acceptable to all members of a particular community (and the groups represented in different communities will vary), the town will inevitably encounter sensitive problems. Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list?" (Parentheses and emphasis in original.)
     Justice Stephen Breyer wrote a six-page dissent and joined a 25-page dissent by Justice Elena Kagan.
     "I conclude, like Justice Kagan, that the town of Greece failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although it is a community of several faiths, its prayer givers were almost exclusively persons of a single faith," Breyer wrote.
     Kagan, joined also by Justices Ruth Bader Ginsburg and Sonia Sotomayor said Greece's prayer practices violates "that norm of religious equality - the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian."
     "I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the court's decision in Marsh v. Chambers, upholding the Nebraska Legislature's tradition of beginning each session with a chaplain's prayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the town of Greece should lose this case. The practice at issue here differs from the one sustained in Marshbecause Greece's town meetings involve participation by ordinary citizens, and the invocations given - directly to those citizens - were predominantly sectarian in content. Still more, Greece's board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share in her government." 

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