Skip to main content

Top court not likely to block town prayers

By Richard W. Garnett, Special to CNN
updated 9:21 AM EST, Thu November 7, 2013
Richard Garnett says predicting court decisions is risky, but the odds are the court won't overturn public meeting prayers.
Richard Garnett says predicting court decisions is risky, but the odds are the court won't overturn public meeting prayers.
STORY HIGHLIGHTS
  • Supreme Court hears case challenging prayer at town board meeting
  • Richard Garnett says court will likely be reluctant to uphold a ban on such prayers
  • Garnett: Constitution prohibits establishment of religion, but public prayers have long history
  • Garnett: U.S. has long tried to protect both religious faith and religious liberty

Editor's note: Richard Garnett, a former clerk to Chief Justice William H. Rehnquist, is a law professor specializing in church/state relations and religious freedom at the University of Notre Dame.

(CNN) -- It is always risky to make predictions about the Supreme Court's decisions based on what is or is not said by lawyers and justices at oral argument. It is also almost impossible to resist the temptation to hunt through the transcripts for clues and tea leaves.

On Wednesday, the justices heard arguments in a case called Town of Greece v. Galloway, which involves a challenge to a small New York town's practice of opening its board meetings with short prayers, delivered by volunteers. A lower federal court ruled last year that the town of Greece's prayers -- but not necessarily all legislative prayers -- violate the First Amendment's rule against "establishments" of religion.

Arguing for those challenging the prayer was one of the most respected legal scholars in America, Douglas Laycock. As his argument time was running down, Justice Elena Kagan -- one of the two justices nominated by President Obama -- shared an interesting and revealing observation. She emphasized how important it is to "maintain a multireligious society in a peaceful and harmonious way" and then added, "every time the court gets involved in things like this, it seems to make the problem worse rather than better."

Richard Garnett
Richard Garnett

A clue? Perhaps. The Supreme Court's decisions and doctrines about church-state relations, religious liberty, and the role of faith in public life are regularly criticized as unpredictable and unprincipled. Why, for example, is a large Ten Commandments monument on the grounds of the Texas State Capitol acceptable while a display in a Kentucky courthouse that includes a framed copy of the Ten Commandments is not? Why did the justices permit a Rhode Island city's Christmas display, which included a creche, but disapprove Pittsburgh's, which did also.

To many observers, the court's rulings seem to have done more to cause discord and dissonance than -- borrowing Kagan's words -- peace and harmony and, at Wednesday's session, many of the justices appeared to share her concern. Over and again, they pressed the attorneys to identify clear lines and straightforward rules that courts, legislators and citizens might use to separate permissible religious solemnizations from unconstitutional religious establishments.

It would be clear and straightforward, of course, to say the Constitution bans all officially sponsored prayers at government meetings and functions. However, to say this would also conflict glaringly with American history and traditions, going back to the founding. In fact, one of the first things the first Congress did when it assembled in 1789 was to select chaplains for the House and the Senate.

This is why, 30 years ago, in the case of Marsh v. Chambers, the court held that legislative prayers offered by a paid chaplain did not violate the First Amendment and it is probably also why none of the justices indicated that he or she is inclined, at this late date, to change course so dramatically. Nor did a majority of the justices seem inclined to treat volunteer-led prayers at town board meetings like potentially coercive invocations at public school graduations and football games.

One suggestion to the justices was that legislative prayers be "nonsectarian" and avoid religious issues and theological claims on which there is significant disagreement. Several of the justices appeared to agree that this would be a sensible policy.

At the same time, most were leery of making this good practice a constitutional requirement, of forcing trial court judges into the tricky and delicate business of parsing and perusing prayers, or of policing a line between allowable prayers that invoke "almighty God" and over-the-line ones that address "Jesus Christ."

Our country is, as Kagan noted, a "multireligious society" and so it is both unsurprising and unavoidable that Americans sometimes disagree about the role and place of religious faith in our public life. It is just as much a fact about our country that, from the very beginning, we have tried to respect religious faith and protect religious liberty, in private and in public. Our tradition and practice has not been to regard public acknowledgments of religion and public requests for divine guidance as inconsistent with our founders' wise decision to distinguish between, or "separate," church and state.

A decision by the court to uphold the town board's prayers in Greece will probably not clear up all the questions about or patch up all the holes in the court's First Amendment case law. However, such a decision, one that relies on precedent and avoids any dramatic changes in direction, will avoid making things worse. And, as Kagan reminded us, that is no small thing.

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Richard Garnett.

ADVERTISEMENT
Part of complete coverage on
updated 2:42 PM EDT, Thu August 21, 2014
Retired Lt. Gen. Mark Hertling says he learned that the territory ISIS wants to control is amazingly complex.
updated 10:50 AM EDT, Thu August 21, 2014
David Weinberger says Twitter and other social networks have been vested with a responsibility, and a trust, they did not ask for.
updated 8:35 PM EDT, Thu August 21, 2014
John Inazu says the slogan "We are Ferguson" is meant to express empathy and solidarity. It's not true: Not all of us live in those circumstances. But we all made them.
updated 3:51 PM EDT, Wed August 20, 2014
Cerue Garlo says Liberia is desperate for help amid a Ebola outbreak that has touched every aspect of life.
updated 1:42 PM EDT, Thu August 21, 2014
Eric Liu says Republicans who want to restrict voting may win now, but the party will suffer in the long term.
updated 11:38 AM EDT, Thu August 21, 2014
Jay Parini: Jesus, Pope and now researchers agree: Wealth decreases our ability to sympathize with the poor.
updated 8:00 AM EDT, Thu August 21, 2014
Judy Melinek offers a medical examiner's perspective on what happens when police kill people like Michael Brown.
updated 6:03 PM EDT, Tue August 19, 2014
It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades, writes Kara Dansky.
updated 1:27 PM EDT, Wed August 20, 2014
Maria Haberfeld: People who are unfamiliar with police work can reasonably ask, why was an unarmed man shot so many times, and why was deadly force used at all?
updated 5:52 PM EDT, Mon August 18, 2014
Ruben Navarrette notes that this fall, minority students will outnumber white students at America's public schools.
updated 5:21 PM EDT, Tue August 19, 2014
Humans have driven to extinction four marine mammal species in modern times. As you read this, we are on the brink of losing the fifth, write three experts.
updated 7:58 AM EDT, Tue August 19, 2014
It's been ten days since Michael Brown was killed, and his family is still waiting for information from investigators about what happened to their young man, writes Mel Robbins
updated 8:42 AM EDT, Mon August 18, 2014
The former U.K. prime minister and current U.N. envoy says there are 500 days left to fulfill the Millennium Goals' promise to children.
updated 1:38 PM EDT, Wed August 20, 2014
Peter Bergen says the terror group is a huge threat in Iraq but only a potential one in the U.S.
updated 4:06 PM EDT, Mon August 18, 2014
Pepper Schwartz asks why young women are so entranced with Kardashian, who's putting together a 352-page book of selfies
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT