JSPAN urges Supreme Court to ban legislative prayer

Thirty years ago, over a strong dissent from Justice Brennan, the U.S. Supreme Court upheld the right of the Nebraska legislature to use government funds to pay for a chaplain because of the “unique history” of legislative prayer in the United States. The issue of legislative prayer is once again before the Court in a case involving the Town of Greece, located just outside Rochester, New York. JSPAN filed a friend of the court brief urging the Supreme Court to reverse its prior opinion and ban government sanctioned legislative prayer.

Background of the case

In 1999, the Town of Greece changed its practice of beginning its monthly town board meetings with a moment of silence. Local clergy were invited to deliver prayers of the public address system. Until 2007, only Christian clergy were invited to deliver the prayers. After two local residents complained, four non-Christians were invited to deliver prayers over the next year. Since then, all of the prayer-givers were once again invited Christian clergy.

As might be expected, a substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to "Jesus Christ," "Jesus," "Your Son," or the "Holy Spirit." Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ's name. Typically, prayer-givers stated something like, "In Jesus's name we pray," or "We ask this in Christ's name." Some prayer-givers elaborated further, describing Christ as "our Savior," "God's only son," "the Lord," or part of the Holy Trinity. One prayer, for example, was given "in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever." Other prayers, including ones not expressly made in Christ's name, spoke of "the role of the Holy Spirit in our lives," and celebrated Christ's birth and resurrection.

The lower court’s ruling

The court of appeals struck down this prayer practice, reasoning that, however well intentioned, it conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion and thus violates the clear command of the Establishment Clause. This is known as the “endorsement” test, one that has been highly criticized by some Justices over the years.

Issues before the Supreme Court

In its appeal to the Supreme Court, the town argued that the Supreme Court should scrap the endorsement test and uphold the legislative prayers because the town had a neutral policy of permitting voluntary prayer-givers of any or not faith to deliver uncensored invocations.

The Obama administration supported the Town’s position, arguing that legislative prayer with sectarian content should be permissible if it does not proselytize or advance any one, or disparage any other, faith or belief. Under this test, the government argued that the prevalence of sectarian Christian references was irrelevant. 


JSPAN’s interest in the case

JSPAN took an interest in this case based upon the experience of its members, many of whom have lived at times in small towns or other communities where there were few other Jews. They have been subjected personally to coercive pressures to conform or stifle themselves when local governments have begun their proceedings with prayer, often prayer with a distinctly Christian message, but almost always with a message that is offensive to nonbelievers.

JSPAN’s argument

Noting that America as a whole is religiously diverse, many of the 89,000 local communities in the United States are homogenous, dominated by a single denomination. Scholars have noted that America is not becoming more religiously integrated. JSPAN made this point by presenting the Court with a series of maps showing on a county-by-county basis how local communities are often dominated by a particular faith tradition or denomination, and at times even becoming a religious enclave.

While people who share a common religious belief or lifestyle have the right to live together, they cannot use that right to establish their religious faith. Religious minorities have the right to migrate and settle in new communities without having to sacrifice their religious freedom in the face of a dominant religious denomination. Local governmental bodies have enormous power over the rights of their citizens. Often, town councils, school directors and zoning boards adjudicate rights in ways that involve nearly unreviewable matters of discretion. When legislative prayers turn sectarian, members of religious minorities can feel coerced into participating or at least to remaining silent, lest they face virulent (and sometimes violent) backlash – which can include a negative response to the business they may be bringing to that governmental body.

JSPAN argues that that the courts have no business policing prayers; and that the proper solution is to permit town officials to pray as they wish before or after their meetings, but not as part of their official government business, with citizens present. Recognizing that the risk of coercion is much greater at the local level, JSPAN urged the Court either to prohibit legislative prayer in general or to limit it to the state and national level where it is less capable of being turned into a tool of abuse.

The Supreme Court is scheduled to hear argument on the case on November 6th. Click below to view the