The Five Big Issues in Supreme Court’s Current Term: Prayer

This is the fourth of five posts.  I have taken the issues in the order that Adam Liptak listed them in his New York Times article, so I have considered campaign finance, abortion, affirmative action.  Today we look at prayer.

The most substantial caution for this series is that this post considers ideology, mostly, but it does so by looking at Supreme Court cases.  As everyone knows, however, principles are not cases. That’s important. 

religion 2I can say I am a liberal (I am) and look at the likely implications of my liberalism, but when a particular case comes up, some difficulties can come up with it.  It may not be clear just what a liberal ought to want from the Court in this case.  Do the proper resolution of this case and the confirmation of my political ideology always point in the same direction?  No, actually, they don’t always.

My standard set of questions would be: a) being a liberal, what outcome do I expect to want; b) as I read the case, what decision seems fair and reasonable to me; and c) do my preferences for this case and my political position fit nicely together?  Might I, for instance, have to question my liberalism on the basis of this case? 

This is a family sort of game.  You are all invited to play along.  Pick the ideological name you apply to yourself, read the case on and choose what action you want the Court to take, and then reflect on your ideology in the light of your decision.

A short way to summarize the guarantees of religious guarantees of the First Amendment is that itreligion 1 provides freedom of religion—freedom for believers to engage in their own religion’s practices—and freedom from religion; no practice of government, in other words, favors one religion over another or “religion” over “irreligion.”  Note that irreligion is not pictured on the graphic.  For that, you have to go to the last one in this post.

Liberals, when they are thinking of freedom of speech, favor everyone’s right—religious people as much as secular people— to say nearly anything.  When we are thinking of freedom of religion, instead of freedom of speech, we are very wary of religious speech practiced by the government.  That’s what this case is about.  Since this case is about religion, I would anticipate being opposed to religious exercises by governments.

Conservatives come at this differently.  They start with the society, not the polity.  They note that there are many communities in the U. S., and even some states, where there are more Christians than there are members of any other religious faith, including, they point out, “secularism.”[1]  Why, they wonder, in a Christian town—a town where a majority of residents is Christian—can we not have a Christian practice at the meetings of our town council.

Here are the facts, as Oyez describes them, ending, as always, with the question.

Facts of the Case 

The town of Greece, New York, is governed by a five-member town board that conducts official business at monthly public meetings. Starting in 1999, the town meetings began with a prayer given by an invited member of the local clergy. The town did not adopt any policy regarding who may lead the prayer or its content, but in practice, Christian clergy members delivered the vast majority of the prayers at the town’s invitation. In 2007, Susan Galloway and Linda Stephens complained about the town’s prayer practices, after which there was some increase in the denominations represented.

In February 2008, Galloway and Stephens sued the town and John Auberger, in his official capacity as Town Supervisor, and argued that the town’s practices violated the Establishment Clause of the First Amendment by preferring Christianity over other faiths. The district court found in favor of the town and held that the plaintiffs failed to present credible evidence that there was intentional seclusion of non-Christian faiths. The U.S. Court of Appeals for the Second Circuit reversed and held that the practices violated the Establishment Clause by showing a clear preference for Christian prayers.


Does the invocation of prayer at a legislative session violate the Establishment Clause of the First Amendment even in the absence of discrimination in the selection of prayer-givers and content?

religion 3The two perspectives are clearly presented in the Oyez account.  The district court wondered whether there was an intentional seclusion of non-Christian faiths.[2]  They found that there was not.  I imagine that they counted the percentage of Christians in town and then the percentage of prayers that reflected Christian presuppositions and found they entirely appropriate.  That’s the decision conservatives would like. The court of appeals found that the pattern of prayers showed a marked preference for Christian prayers and that preference is just what the Framers were trying to prevent when they said there should be no “establishment of religion.”  That’s the decision liberals would like.

So what do I learn about my liberalism by thinking about my reflexive vote for the U. S. Supreme Court to agree with the court of appeals?  Not a lot.  Being a Christian myself, I have no worries that “religious perspectives” are going to take over society.  I think that might be really good for society, depending on what the alternatives are, but it would be really bad for the government, which is supposed to be the government for us all.  But being a Christian, I am not as wary of Christian presuppositions as members of other religions or no religion would be.

I think this is a lot like knowing what foods contain gluten. I am quite sure I would be more awarereligion 4 of foods that contain gluten or that have touched anything containing gluten if my aversion to gluten were extreme and disabling.

For liberals, religious practices by governmental bodies are “gluten.”



[1] Whether “secularism” is a “faith” or not is an interesting and complicated question.  The Court has answered yes in some contexts and no in others.

[2] I would have said an “exclusion,” but maybe “seclusion” has some formal meaning I don’t know about.  Since this is Oyez, it probably isn’t a typo.

About hessd

Here is all you need to know to follow this blog. I am an old man and I love to think about why we say the things we do. I've taught at the elementary, secondary, collegiate, and doctoral levels. I don't think one is easier than another. They are hard in different ways. I have taught political science for a long time and have practiced politics in and around the Oregon Legislature. I don't think one is easier than another. They are hard in different ways. You'll be seeing a lot about my favorite topics here. There will be religious reflections (I'm a Christian) and political reflections (I'm a Democrat) and a good deal of whimsy. I'm a dilettante.
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