Are prayers before public meetings OK? Supreme Court to decide.
Officials in Greece, N.Y., set up a system for prayers before town meetings. The US Supreme Court on Monday agreed to examine whether the practice violates the First Amendment's separation of church and state.
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“Under the town’s policy, atheists and non-believers were equally welcome to volunteer to give an invocation,” Mr. Hungar said. Anyone could deliver a prayer, and town officials refused to police the content of a prayer or attempt to gauge its religiosity.Skip to next paragraph
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Ayesha Khan, a lawyer with Americans United for Separation of Church and State, said in her brief to the court that the town board “exploited its prayer opportunity to advance one faith to the exclusion of others.”
Ms. Khan, who is representing the two complaining residents of Greece, said the town’s prayer practice violates the constitutional command that government remain neutral in matters of faith.
“With the exception of a four-meeting hiatus around the time of the filing of this lawsuit in 2008, the Town has relied exclusively on Christian clergy, who have persistently delivered overtly Christian prayers,” she wrote.
“Clergy request that attendees join in the prayers. Town Board members participate by bowing their heads, standing, responding ‘Amen,’ or making the sign of the cross,” she said. “Members of the audience do the same.”
In asking the high court to hear the case, Hungar said there was a split within the federal appeals courts concerning the correct test judges must apply to determine if a legislative prayer crosses the line.
He said the Fourth Circuit in Richmond, Va., and the Second Circuit in New York had both embraced an approach that requires courts to determine if a pre-meeting prayer has an impermissible effect on a reasonable observer.
In contrast, he said, a 1983 Supreme Court decision requires judges to determine only whether a pre-meeting prayer was being used to proselytize, advance, or disparage a particular faith. Under that case, there is no requirement to examine the content of the prayer and its possible effect on a listener, he said.
Hungar said the case is of importance nationwide. The Second Circuit decision, he said, would require public officials to engage in pre-meeting critiques of future invocations.
“The frightening prospect of state officers acting as official censors of prayers delivered voluntarily by private citizens (or even paid chaplains) has no basis in this Nation’s tradition or this Court’s jurisprudence,” he wrote.
Khan disputed the existence of a significant split among the appeals courts. Differences in appellate court decisions, she said, were due to factual differences in each case.
She rejected the charge that the Second Circuit decision would lead to more litigation and confusion.
In a friend-of-the-court brief, 18 states encouraged the court to hear the case and overturn the Second Circuit decision. “It is important that the Court address the growing split over this issue before it becomes yet another irredeemably muddled sector of Establishment Clause doctrine,” Indiana Solicitor General Thomas Fisher wrote.
“The lack of clarity in this area is especially troubling to the extent it leaves courts to delve into questions best left to theologians, not courts of law,” he said.