Why pray before a town hall meeting?

It is certainly far from uncommon for public bodies to open their deliberations with a religious statement of some kind. Clergy are commonly invited to present an invocation.

Such was the practice of the New York state town of Greece, until it was successfully challenged in federal court by a lawsuit brought by Americans United for Separation of Church and State. The result of that challenge may be a fundamental reconsideration of the Establishment Clause jurisprudence in the area of religion at meetings of public bodies. The case will be argued in the U.S. Supreme Court in the fall.

It is to wonder what actually motivates those who decide that there needs to be a religious statement to open a meeting. Is it a truly religious belief that their deliberations should be guided by higher principles? Is it a feeling that their constituents expect it? Concern that they will be criticized if they do not? Habit?

And do the members of a city council (for example) consider what effect the words spoken have on the public? On believers and nonbelievers? Or are most people so used to the practice that they tune out or ignore it, and simply regard it as words intended to fill time rather than communicate a message?

Regardless of the answer to any of the foregoing questions (we are aware that there are no definitive answers), the injection of religion in any form into a meeting of a government body invokes the jurisprudence of the First Amendment's Establishment Clause: "Congress shall make no law respecting an establishment of religion..." (The same prohibition applies to the states.)

The practice of opening the sessions of the Nebraska legislature with prayer was challenged 30 years ago. In Marsh v. Chambers (1983), the U.S. Supreme Court held that the Establishment Clause was not violated by these invocations. It based the decision on historical practice, pointing out that the first Congress appointed paid chaplains to open its sessions with a prayer.

In light of the fact that it was the same Congress that adopted the First Amendment, Chief Justice Warren E. Burger concluded that the legislators did not regard the prayer as adopting one religious view, but reflected a practice "deeply embedded in the history and tradition of this country." Moreover, in light of an "unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society." "It is simply a tolerable acknowledgment of beliefs widely held among the people of this country." (Justices William J. Brennan, Thurgood Marshall and John P. Stevens dissented.)

Since 1983, when Marsh v. Chambers was decided, although the court has decided a number of important Establishment Clause cases, it has addressed public prayer only in the schools context. In some of these cases the court has adopted language suggesting that the test for establishment cases is "endorsement." The question to be asked under that test is whether the practice challenged suggests to a reasonable observer that certain religious beliefs are favored or disfavored by the community.

The town of Greece board adopted the practice of opening meetings with an invocation in 1999. It invited local clergy to give the prayers. No formal method of inviting ministers was adopted, but all were of one Christian denomination or another. When the first objections were raised to the practice in 2007, invocations by non-Christians (Wiccan, Bahai, Jewish) were added, and opened a total of four meetings.

Responding to the challenge, the board members insisted that they did not favor any particular religion, but relied on the fact that the predominance of Christian prayers reflected the population of the town. There was, however, no reaching out to other groups.

The district court dismissed Americans United's challenge, but the 2nd U.S. Circuit Court of Appeals reversed. The appellate court found that under the particular facts of the case, a reasonable observer would think that Christianity held a favored place in the community. A majority of the prayers were not neutral, but included sectarian Christian language ("Jesus," "Jesus Christ," "Savior").

Although no sectarian intent was attributed to the board, the court decided that the fictitious reasonable observer would have decided that the board "affiliated" the town with Christianity. The court expressly rejected a decision on the basis of "sectarian" versus "non-sectarian," opting instead to apply an endorsement test.

The Court of Appeals emphasized that it was ruling on the particular facts of the case, and the "totality of the circumstances."

This particular statement has the effect of making the Supreme Court's grant of certiorari in the case more important than the circuit court decision itself. There are several decisions in other circuits on such prayers, all involving different fact patterns. Although the circuits are split on doctrine in this area, the case would in all likelihood not have garnered the four votes necessary for a grant of review if the court did not intend to reconsider its Marsh v. Chambers ruling in light of the Establishment Clause cases decided since 1982. Justice Sandra Day O'Connor, who originally invoked endorsement as a test, is no longer on the court, which has consistently struggled with its jurisprudence in this area. The 3-part Lemon test has never been formally abandoned, but it is often ignored.

Add to these factors that almost all Supreme Court rulings in the Establishment Clause area are made by a badly fractured court. The concern for minorities that the endorsement test evidences is not always apparent in current opinions. Justice Antonin Scalia, dissenting in a case holding the display of the Ten Commandments a violation of the separation principle, refers to the fact that the three largest bodies of believers in the U.S. (Christianity, Judaism and Islam) constitute 97.7 percent of all believers. The acceptance by such a large proportion, says Scalia, means that display of the Ten Commandments, accepted by all three faiths, cannot be regarded as endorsement of a particular viewpoint. That statement appears to ignore both 2.3 percent of the population, and, more importantly, that the Bill of Rights is intended to protect minorities, a prime consideration of the 2nd Circuit in its Greece decision.

The town of Greece board allowed one religion to dominate its prayers and made no effort to reach out to other religions. Whether the Supreme Court will find this controlling, as the 2nd Circuit did, remains to be seen. Without guidance from the Supreme Court since 1982, all public bodies will have to wait to find out what the high court decides.

Clearly a holding that a public body may open its sessions with a prayer raises fundamental Establishment Clause issues. The lack of a clear doctrine in Marsh v. Chambers other than historical precedent adds to the belief of many observers that the court is poised to consider from scratch the entire question of religious invocations.