Constitution Daily

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Constitution Check: Is the Court going to add to religious disharmony?

November 7, 2013 by Lyle Denniston


Lyle Denniston looks at the Supreme Court’s deliberations over a highly publicized public prayer case, and why a formula may well be quite elusive for the Court.

350px-Supreme_Court_US_2010THE STATEMENT AT ISSUE:

“Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way.  And every time the Court gets involved in things like this, it seems to make the problem worse rather than better…The Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways.”

 – Justice Elena Kagan, in a comment from the bench Wednesday as the Supreme Court held a hearing on the constitutionality of opening government meetings with a recital of prayers.


Few documents in the long and sometimes agitated history of America’s attempts to define the constitutional roles of government and religion are more important than Thomas Jefferson’s letter to the Baptists in Danbury, Conn., on New Year’s Day in 1802.  It is most often remembered for his statement there that the First Amendment built “a wall of separation between Church and State.”

But that letter also said that “the legitimate powers of government reach actions only, & not opinions,” and that “religion is a matter which lies solely between Man & his God.”   The Supreme Court quoted that part of the letter in one of its first full explorations of the meaning of the First Amendment’s religious freedom clauses, in the 1878 case of Reynolds v. U.S.  There, in a case involving George Reynolds, a Utah Mormon charged with a crime for having multiple wives, the court ruled that religious duty cannot excuse a violation of a criminal law (there, a law against bigamy).

The Supreme Court, as Justice Kagan said on Wednesday, has been getting into trouble every time it tries, again, to draw lines between religious belief (beyond government’s reach) and religious conduct (sometimes within government control).  She lamented that fact as the Justices were exploring whether the recital of prayers at the start of town board meetings in Greece, New York, is something that the Constitution tolerates.

“Tolerates” is an apt word here, since the last time the Supreme Court ruled on prayers at government meetings – in the 1983 case of Marsh v. Chambers – it allowed those prayers as “a tolerable acknowledgment of beliefs widely held among the people of this country."

What the Justices discovered on Wednesday – and it was no surprise -- is that it is not easy to say what the Constitution tolerates when it comes to prayer as an opening ritual at a government meeting.  In a fast-paced hour of constitutional debate, the Court looked at a wide variety of scenarios of town hall prayer-giving, and ended the hearing no closer to agreement than they had been at the opening.

The 1983 decision had solved the problem of finding the “tolerable” by reciting the history of legislative prayer.  That history runs all the way back to the first Congress in 1789, and that was, of course, the Congress that drafted the Bill of Rights, including the First Amendment’s religion clauses.   It was in response to the adoption of the First Amendment, in fact, that led Jefferson to write his letter to the Danbury Baptists.

But, as several Justices pointed out in the town board case, the Marsh case dealt with a state legislature, and maybe that was different – in a constitutional way – from a local council meeting where people come to ask for government action and don’t want to be a captive audience for someone’s invocation of their own notion of a deity.  If there is no long history of prayers at the local government level, does the 1983 precedent help define constitutionality?

What the Court also found, however, was that, if history is not the constitutional guide, then another formula may well be quite elusive.  Was the federal appeals court in this case right in finding that the town board prayers in Greece were invalid because they seemed to be an endorsement of Christianity as the town’s official faith?  Or should those prayers be judged by a standard of “coercion,” so that people who show up for the meeting to talk public business are reluctant to avoid praying along with the board in order to avoid upsetting the board and lessening their chances of getting official action?

Each time a Justice explored a variant of a constitutional approach, another Justice or one of the three lawyers who argued the case would discern some hole or flaw in it, and the exercise began to look more and more futile.

It was near the end of the argument that Justice Kagan took the discussion beyond the constitutional specifics, to a kind of inquiry that, at first, sounded highly unusual.

In effect, she seemed to be asking: How do we decide this case (or, perhaps, can we decide it) without getting into trouble all over again, appearing to be “hostile to religion”?

Actually, though, that is the kind of question that a judge may often ask during deliberation: What’s the best way to decide this case so that we don’t contribute to civic disharmony?   Searching for the answer could lead the Court to simply treat their 1983 precedent as a basis for allowing town board prayers, on the premise that America has lived with that decision for three decades, or it could lead the Court to reach for the narrowest way to decide this particular case on the premise that, the less said, the better.

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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