Supreme Court To Hear Defense Of Legislative Prayer
September 7, 1774
"O Lord our Heavenly Father, high and mighty King of kings, and Lord of lords, Who dost from Thy throne behold all the dwellers on earth and reignest with power supreme and uncontrolled over all the Kingdoms, Empires and Governments; look down in mercy, we beseech Thee, on these our American States, who have fled to Thee from the rod of the oppressor and thrown themselves on Thy gracious protection, desiring to be henceforth dependent only on Thee."
Reverend Jacob Duché
Opening the First Continental Congress
With those words, Reverend Duché, Rector of Christ Church of Philadelphia, launched a tradition that—239 years later—is still honored daily by legislative bodies from small-town America to the U.S. Senate: the custom of opening public meetings with prayer.
Objecting to these volunteer expressions of religious sentiment, Americans United for the Separation of Church and State (AU) filed a federal lawsuit against the town in 2008. In its opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that, since Greece has mostly Christian clergy, it may need to import non-Christians from outside the community to lead non-Christian prayers—so that those who believe differently won’t "feel like outsiders."
"The court struck the practice because, to their mind, officials should have bused in people from out of town to pray," says Senior Counsel David Cortman, Vice President of Litigation for Alliance Defending Freedom, which is representing Greece. While "the town of Greece does not control who volunteers to deliver an invocation," he says, the court’s ruling suggests that the town’s council is itself unconstitutionally biased toward the Christian faith—when, in fact, "any decision made about the nature of the prayers is determined by the citizens who volunteer."
The essential question at the heart of this case is whether public prayer—which has been practiced since our nation’s founding—remains constitutional, and that is the issue to be decided when the U.S. Supreme Court hears Alliance Defending Freedom attorneys and our allies defend Greece v. Galloway this fall.
"It seems clear [the Founding Fathers] did not see praying before legislating as a conflict of interest."
"The AU will be looking at this as a means to overturn the 1983 Marsh v. Chambers decision," says Senior Counsel Brett Harvey, referencing a landmark Supreme Court case that cited the "unambiguous and unbroken history of more than 200 years" in upholding legislative prayer and government funding for chaplains.
In fact, given that America’s Founders hired a congressional chaplain the same week they passed the "Establishment Clause" of the First Amendment (prohibiting "any law respecting an establishment of religion"), it seems clear they did not see praying before legislating as a constitutional conflict.
Faced with the Chambers precedent, Harvey says, the AU and its allies have shifted their legal efforts to an attack on the way people pray, demanding that government officials censor legislative prayers "to make sure they don’t say things AU and its clients don’t want to hear."
If the AU is successful this fall in persuading the high court that public prayer should be censored because someone may hear something they may not like, it will be encouraged to challenge such practices as the wording of the Pledge, of oaths of office, and of American currency.
Recognizing that danger, more than half of the states, nearly 100 U.S. Congressman, some 35 U.S. Senators, and the Solicitor General (who represents the federal government before the U.S. Supreme Court) have all filed amicus briefs supporting this longstanding practice.
"This is an extraordinary—and very broad—expression of legal support," says Cortman, "and it shows how valued this freedom is to Americans across the political, social, and religious spectrum. It is our hope that the high court will recognize how important this issue is to their fellow Americans, and that their decision will affirm our nation’s strong tradition of religious freedom."
"A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like," Harvey says. "It’s perfectly constitutional to allow community members to ask for God’s blessing according to their conscience."
All of which makes this a crucial time to pray for the freedom to pray in America.