WASHINGTON — The Supreme Court, which begins its sessions with an invocation to God, considered Wednesday whether a town in upstate New York had crossed a constitutional line in opening its Town Board meetings with mostly Christian prayers.
Justice Elena Kagan, asking the first question, wanted to know whether the Supreme Court could open its sessions with an explicitly Christian prayer, one acknowledging, for instance, “the 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 case allowed explicitly Christian prayers in legislative settings, although perhaps not judicial ones. The case, 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 Hungar’s argument, which relied on the Marsh decision and the history it reflected.
“The essence of the argument is that we’ve always done it this way,” Kennedy said.
But Kennedy appeared equally reluctant to have judges or other government officials decide what prayers are acceptable. That would, he said, “involve the state very heavily in the censorship and the approval and nonapproval of prayer.”
Justice Antonin Scalia said prayers in a legislative setting were different from the hypothetical ones in court that 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.”
Douglas Laycock, representing two women who challenged the prayers in New York as a violation of the First Amendment ban on government establishment of religion, said there were important differences between the two cases. The prayers in New York were often explicitly sectarian, he said, and town residents were forced to listen to them in order to participate in local government.
Justice Samuel A. Alito Jr. asked Laycock for an example of a prayer that would be acceptable to people of all faiths. Laycock said “prayers to the Almighty” and “prayers to the Creator” would be all right.
Chief Justice John G. Roberts Jr., like several justices, seemed wary of the government distinguishing acceptable prayers from unacceptable ones.
“Who is supposed to make these determinations?” he asked.
Laycock said town officials could simply tell those offering prayers to avoid discussing “points on which believers are known to disagree.”
The case, Town of Greece v. Galloway, No. 12-696, arose from the Town Board’s practice of starting its public meetings with a prayer from a “chaplain of the month.” Town officials said that members of all faiths and atheists were welcome to give the opening prayer.
In practice, the federal appeals court in New York said in ruling against the town that almost all of the chaplains were Christian.
“A substantial majority of the prayers in the record contained uniquely Christian language,” Judge Guido Calabresi wrote for a unanimous three-judge panel of the court, the US Court of Appeals for the Second Circuit. “Roughly two-thirds contained references to ‘Jesus Christ,’ ‘Jesus,’ ‘Your Son’ or the ‘Holy Spirit.’ ”
“The town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” Calabresi wrote.
Justice Stephen G. Breyer suggested ways in which the conflicting interests in the case might be accommodated, including with an effort to invite chaplains of many faiths. He said the House of Representatives, which starts its sessions with a prayer, tells chaplains to bear in mind that the House “is comprised of members of many different faith traditions.”