Written by Don Byrd
Yesterday, the Supreme Court heard arguments in a church-state case involving legislative prayer, their first case on the issue in 30 years. You can read the entire transcript here. I’ve pulled out some of the highlights below.
Here, Justice Kagan discusses with the government’s lawyer (who supports the prayer policy in question) her view of the problem posed by legislative prayer at a local government meeting.
JUSTICE KAGAN: Mr. Gershengorn, could you respond to this? Here’s what our — our country promises, our Constitution promises. It’s that, however we worship, we’re all equal and full citizens. And I think we can all agree on that. And that means that when we approach the government, when we petition the government, we do so not as a Christian, not as a Jew, not as a Muslim, not as a nonbeliever, only as an American. And what troubles me about this case is that here a citizen is going to a local community board, supposed to be the closest, the most responsive institution of government that exists, and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, whether she belongs to the same religious idiom as most of the people in the room do. And it strikes me that that might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.MR. GERSHENGORN: So, Justice Kagan, I think we agree with much of what you say. But — but with the difference here is that this approaching of the government body occurs against the backdrop of 240 years of history, which makes this different. From the very beginning of our legislature, from the First Continental Congress, and then from the — from the first Congress, there have been legislative prayers given in the religious idiom of either the official chaplain or a guest chaplain, that have regularly invoked the — the deity and the — the language of the prayer-giver.
Justice Kennedy seemed concerned about even requiring prayers not “advance’ religion – a rule articulated by the Court in Marsh – as too unrealistic.
JUSTICE KENNEDY: Of course, your — your test is whether or not — part of your test — is whether or not it advances religion. If you ask a chaplain for the State assembly in Sacramento, California, who’s going to go to the assembly to deliver a prayer, are you going to advance your religion today, would he say oh, no?
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I’m asking whether or not it is, in fact, honest and candid and fair to ask the minister or — or the priest or the chaplain or the rabbi if by appearing there, he or she seeks to advance their religion?
Representing the plaintiffs in the case, Professor Douglas Laycock argued the nonsectarian prayer requirement adopted by many courts is a workable solution that has its own history. Some justices questioned whether an acceptable-to-all nonsectarian prayer is possible, or is a practical solution.
CHIEF JUSTICE ROBERTS: Well, I’ll repeat mine. It was: Who was supposed to make these determinations? Is there supposed to be an officer of the town council that will review? Do prayers have to be reviewed for his approval in advance?
MR. LAYCOCK: No. Principally the clergy make this determination. There is a 200-year tradition of this kind of civic prayer. The clergy know how to do it. If the city has a policy, then an occasional violation by one clergy is not the city’s responsibility. So — so this is left principally to the clergy by simply giving them instructions. They receive no instruction of any kind about the purpose of this prayer or -
CHIEF JUSTICE ROBERTS: So there is an official in the town council that is to instruct clergy about what kind of prayer they can say?MR. LAYCOCK: That’s right. 37 State legislative bodies, the House of Representatives have these kinds of guidelines. They issue them to the guestclergy before they appear.JUSTICE KENNEDY: And if I’m — if I’m that official and I think a prayer was over the top for being proselytizing and particularly sectarian, I would say I rather not — you not come back next week; I am going to look for somebody else?MR. LAYCOCK: Well, you might have a conversation with him first and -JUSTICE KENNEDY: Well, so in other words the government is now editing the content of prayers?MR. LAYCOCK: Editing the content of government-sponsored prayers. Of course these clergy can pray any way they want on their own time with their own audience. But this is an official government event. And it’s part of the board’s meeting. It’s sponsored by the government. And they delegate the task to these clergy and they can define the scope…
