Skip to main content

Top court not likely to block town prayers

By Richard W. Garnett, Special to CNN
November 7, 2013 -- Updated 1421 GMT (2221 HKT)
Richard Garnett says predicting court decisions is risky, but the odds are the court won't overturn public meeting prayers.
Richard Garnett says predicting court decisions is risky, but the odds are the court won't overturn public meeting prayers.
STORY HIGHLIGHTS
  • Supreme Court hears case challenging prayer at town board meeting
  • Richard Garnett says court will likely be reluctant to uphold a ban on such prayers
  • Garnett: Constitution prohibits establishment of religion, but public prayers have long history
  • Garnett: U.S. has long tried to protect both religious faith and religious liberty

Editor's note: Richard Garnett, a former clerk to Chief Justice William H. Rehnquist, is a law professor specializing in church/state relations and religious freedom at the University of Notre Dame.

(CNN) -- It is always risky to make predictions about the Supreme Court's decisions based on what is or is not said by lawyers and justices at oral argument. It is also almost impossible to resist the temptation to hunt through the transcripts for clues and tea leaves.

On Wednesday, the justices heard arguments in a case called Town of Greece v. Galloway, which involves a challenge to a small New York town's practice of opening its board meetings with short prayers, delivered by volunteers. A lower federal court ruled last year that the town of Greece's prayers -- but not necessarily all legislative prayers -- violate the First Amendment's rule against "establishments" of religion.

Arguing for those challenging the prayer was one of the most respected legal scholars in America, Douglas Laycock. As his argument time was running down, Justice Elena Kagan -- one of the two justices nominated by President Obama -- shared an interesting and revealing observation. She emphasized how important it is to "maintain a multireligious society in a peaceful and harmonious way" and then added, "every time the court gets involved in things like this, it seems to make the problem worse rather than better."

Richard Garnett
Richard Garnett

A clue? Perhaps. The Supreme Court's decisions and doctrines about church-state relations, religious liberty, and the role of faith in public life are regularly criticized as unpredictable and unprincipled. Why, for example, is a large Ten Commandments monument on the grounds of the Texas State Capitol acceptable while a display in a Kentucky courthouse that includes a framed copy of the Ten Commandments is not? Why did the justices permit a Rhode Island city's Christmas display, which included a creche, but disapprove Pittsburgh's, which did also.

To many observers, the court's rulings seem to have done more to cause discord and dissonance than -- borrowing Kagan's words -- peace and harmony and, at Wednesday's session, many of the justices appeared to share her concern. Over and again, they pressed the attorneys to identify clear lines and straightforward rules that courts, legislators and citizens might use to separate permissible religious solemnizations from unconstitutional religious establishments.

It would be clear and straightforward, of course, to say the Constitution bans all officially sponsored prayers at government meetings and functions. However, to say this would also conflict glaringly with American history and traditions, going back to the founding. In fact, one of the first things the first Congress did when it assembled in 1789 was to select chaplains for the House and the Senate.

This is why, 30 years ago, in the case of Marsh v. Chambers, the court held that legislative prayers offered by a paid chaplain did not violate the First Amendment and it is probably also why none of the justices indicated that he or she is inclined, at this late date, to change course so dramatically. Nor did a majority of the justices seem inclined to treat volunteer-led prayers at town board meetings like potentially coercive invocations at public school graduations and football games.

One suggestion to the justices was that legislative prayers be "nonsectarian" and avoid religious issues and theological claims on which there is significant disagreement. Several of the justices appeared to agree that this would be a sensible policy.

At the same time, most were leery of making this good practice a constitutional requirement, of forcing trial court judges into the tricky and delicate business of parsing and perusing prayers, or of policing a line between allowable prayers that invoke "almighty God" and over-the-line ones that address "Jesus Christ."

Our country is, as Kagan noted, a "multireligious society" and so it is both unsurprising and unavoidable that Americans sometimes disagree about the role and place of religious faith in our public life. It is just as much a fact about our country that, from the very beginning, we have tried to respect religious faith and protect religious liberty, in private and in public. Our tradition and practice has not been to regard public acknowledgments of religion and public requests for divine guidance as inconsistent with our founders' wise decision to distinguish between, or "separate," church and state.

A decision by the court to uphold the town board's prayers in Greece will probably not clear up all the questions about or patch up all the holes in the court's First Amendment case law. However, such a decision, one that relies on precedent and avoids any dramatic changes in direction, will avoid making things worse. And, as Kagan reminded us, that is no small thing.

Follow @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Richard Garnett.

ADVERTISEMENT
Part of complete coverage on
April 16, 2014 -- Updated 1642 GMT (0042 HKT)
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
April 16, 2014 -- Updated 1539 GMT (2339 HKT)
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
April 15, 2014 -- Updated 1849 GMT (0249 HKT)
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
April 16, 2014 -- Updated 1156 GMT (1956 HKT)
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
April 16, 2014 -- Updated 1153 GMT (1953 HKT)
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
April 15, 2014 -- Updated 2129 GMT (0529 HKT)
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
April 15, 2014 -- Updated 1641 GMT (0041 HKT)
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
April 14, 2014 -- Updated 1523 GMT (2323 HKT)
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
April 14, 2014 -- Updated 1156 GMT (1956 HKT)
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
April 14, 2014 -- Updated 1754 GMT (0154 HKT)
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
April 14, 2014 -- Updated 1155 GMT (1955 HKT)
Democrats need to show more political spine when it comes to the issue of taxes.
April 14, 2014 -- Updated 1555 GMT (2355 HKT)
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
April 14, 2014 -- Updated 1317 GMT (2117 HKT)
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
April 13, 2014 -- Updated 1856 GMT (0256 HKT)
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
April 11, 2014 -- Updated 1522 GMT (2322 HKT)
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
April 11, 2014 -- Updated 1906 GMT (0306 HKT)
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
April 11, 2014 -- Updated 1432 GMT (2232 HKT)
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
April 11, 2014 -- Updated 1649 GMT (0049 HKT)
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
April 11, 2014 -- Updated 1416 GMT (2216 HKT)
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
April 12, 2014 -- Updated 0121 GMT (0921 HKT)
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
April 10, 2014 -- Updated 1731 GMT (0131 HKT)
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
April 10, 2014 -- Updated 2128 GMT (0528 HKT)
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
April 14, 2014 -- Updated 1522 GMT (2322 HKT)
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
April 10, 2014 -- Updated 1632 GMT (0032 HKT)
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
April 11, 2014 -- Updated 1103 GMT (1903 HKT)
Simon Tisdall: Has John Kerry's recent track record left Russia's wily leader ever more convinced of U.S. weakness?
April 10, 2014 -- Updated 1640 GMT (0040 HKT)
Mel Robbins says Nate Scimio deserves credit for acting bravely in a frightening attack and shouldn't be criticized for posting a selfie afterward
April 9, 2014 -- Updated 1839 GMT (0239 HKT)
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
April 10, 2014 -- Updated 1345 GMT (2145 HKT)
Dr. Mary Mulcahy says doctors who tell their patients the truth risk getting bad ratings from them
April 9, 2014 -- Updated 1328 GMT (2128 HKT)
Peggy Drexler says the married Rep. McAllister, caught on video making out with a staffer, won't get a pass from voters who elected him as a Christian conservative with family values
April 9, 2014 -- Updated 1143 GMT (1943 HKT)
David Frum says the president has failed to react strongly to crises in Iran, Syria, Ukraine and Venezuela, encouraging others to act out
April 9, 2014 -- Updated 2057 GMT (0457 HKT)
Eric Liu says Paul Ryan gets it very wrong: The U.S.'s problem is not a culture of poverty, it is a culture of wealth that is destroying the American value linking work and reward
April 9, 2014 -- Updated 1151 GMT (1951 HKT)
Frida Ghitis writes: "We are still seeing the world mostly through men's eyes. We are still hearing it explained to us mostly by men."
April 10, 2014 -- Updated 1408 GMT (2208 HKT)
Chester Wisniewski says the Heartbleed bug shows how we're all tangled together, relying on each other for Internet security
April 9, 2014 -- Updated 1926 GMT (0326 HKT)
Danny Cevallos says an Ohio school that suspended a little kid for pointing his finger at another kid and pretending to shoot shows the growth in "zero tolerance" policies at school run amok
ADVERTISEMENT