Constitutionality of Prayer at Government Meetings Rattles Supreme Court

November 7, 2013

 The Supreme Court, which begins its sessions with an invocation to God, considered on Wednesday whether a town in upstate New York had crossed a constitutional line in opening its Town Board meetings with mostly Christian prayers. The justices seemed to find the issue unusually difficult, with several of them suggesting there was no satisfactory principled answer.

Justice Elena Kagan, asking the first question, wanted to know whether the Supreme Court could open its sessions with an explicitly Christian prayer from a minister, one acknowledging, for instance, “the saving sacrifice of Jesus Christ on the cross.” Such prayers were offered before Town Board meetings in Greece, N.Y., near Rochester.

Thomas G. Hungar, a lawyer for the town, said a 1983 Supreme Court decision allowed Christian prayers in legislative settings, though perhaps not in judicial ones. The decision, Marsh v. Chambers, upheld the Nebraska Legislature’s practice of opening its sessions with an invocation from a paid Presbyterian minister, saying such ceremonies were “deeply embedded in the history and tradition of this country.”

Justice Anthony M. Kennedy seemed frustrated with Mr. Hungar’s argument, which relied almost exclusively on the Marsh decision and the history it reflected. “The essence of the argument is that we’ve always done it this way, which has some force to it,” Justice Kennedy said. “But it seems to me that your argument begins and ends there.”

At the same time, Justice Kennedy appeared reluctant to have judges or other government officials decide what prayers are acceptable. Such a practice. he said, “involves the state very heavily in the censorship and the approval or disapproval of prayer.”

Justice Antonin Scalia said prayers in a legislative setting were different from the hypothetical ones in court that Justice Kagan had asked about. “People who have religious beliefs,” he said, “ought to be able to invoke the deity when they are acting as citizens and not as judges.”

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