Congress, Constitutional Law, Politics, Society

An Unholy Mess: Supreme Court Votes 5-4 In Favor of Christian Prayers At Local Council Meetings

supreme courtGreecelogoIn a blow to secularists and civil libertarians, the Supreme Court voted 5-4 in Greece v. Galloway to allow Christian prayers at a local council. The Court again left little clarity on the standard for future cases in what proved a highly fractured decision. Justice Anthony Kennedy tipped the balance in favor of the Town of Greece with Chief Justice John Roberts, Justice Samuel Alito, Justice Antonin Scalia, and Justice Clarence Thomas. However, his opinion was left in pieces by a series of concurring opinions. Scalia and Thomas specifically bolted over Part II-B of Kennedy’s opinion (except as to Part II–B, concluding that the town’s prayer practice does not violate the Establishment Clause.) Alito wrote a concurring opinion, joined by Justice Scalia. Justice Thomas also wrote a concurring opinion joined by Justice Scalia in part. Even the dissenting justices divided with a Breyer opinion for himself and a dissent by Kagan that was joined by Justices Breyer, Ginsburg, and Sotomayor. In other words, an unholy mess.


The record in the case was viewed by many as highly suspicious in how the council almost exclusively used Christian ministers while professing to be open to any faith, including atheists. The town followed an informal method for selecting prayer givers under which a town employee would call the congregations listed in local directory. That itself allowed for an obvious bias but also the town only had Christian ministers. Even Kennedy admitted that “from 1999 to 2007, all of the participating ministers were too.”

The prayers often referenced Jesus or Biblical passages:

“Lord we ask you to send your spirit of upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility. . . . Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.” Id., at 45a.

“Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism,violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen.”

Kennedy emphasized that the Court had long recognized a historical practice of prayers as not violating the establishment clause:

An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” 463 U. S., at 786.

Kennedy found no evidence of coercion in the use of the prayers by the Town of Greece:

Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.

Kennedy made clear that secular values would not replace religious values in such public meetings as a constitutional mandate and refused to require “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere . . . Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.”

This does not of course help those who do not believe in theism. I suppose, like Rome, when in Greece just learn to do as the Greeks do.

The case is Greece v. Galloway, 12-696. In my Supreme Court class, the students voted overwhelmingly to affirm by a vote of 11-1. The prediction was closer. Five of us thought that the Court would reverse the Second Circuit (which it did) and seven students thought the Court would affirm.

Here are the opinions.

970 thoughts on “An Unholy Mess: Supreme Court Votes 5-4 In Favor of Christian Prayers At Local Council Meetings”

  2. ITEMS OF PARTICULAR NOTE

    It seems to me that most don’t “get it” that a person is elected upon party lines; but is then compelled (by oath of office) to represent the nation.

    Not the party!

    Secondly – any argument that begins with “you guys—” is a biased logic tree from the outset; and therefore can’t be a “pure” argument.

    Finally

    Though the discourse throughout this thread has been profuse and on tangents various with many a tumultuous banter; this is one great thread.

    Hope to see more of this.

  3. Annie,
    Nurses are my favorite people. Head nurses don’t just walk on water, they part it. She once grabbed the Chief of Staff by the seat of the pants and shirt collar, frog marching him to the elevator. Told him to get the hell off her floor until he learned to talk right to her nurses. Yup, you two would have gotten along famously.

  5. Paul,

    BTW, I have never–in all my years commenting and writing for this blog–emailed Jonathan to complain that someone was being mean to me…misrepresenting what I had said…been insulting to me…implied that I was dishonest, etc. That is not true of everyone who comments on this blog. I believe in standing up for myself. If some people feel that I’ve been treated unfairly, it’s their right to comment if they so choose. It’s out of my hands.

  6. Annie,
    Doghouse hell. There are worse things. I came home late one night from work and was trying not to make any noise and wake everyone up. As I got to the top of the stairs and was about to go through the bedroom door, I stopped in my tracks. In the stillness of a quiet house, there is nothing quite like the sound of a round being shucked into the chamber of a semi-automatic.

    I never made that mistake again.

  7. Nick, Maybe, but Elaine did not solicit that from them. She takes very good care of herself. Most are gone except raff and the keebler elf.

  9. Paul, Bingo. When these paternalistic, allegedly liberal men would swoop in to protect Elaine I would say the same. I have been JUST as tough and tougher on men. Like many people, Elaine wants it both ways.

  11. Oh, Chuck, add him to the list of paternalistic men who have come to the aid of the damsel in distress many times.

  12. Gene, MikeS, AY, raff, TonyC, to name a few of male protectors on MANY threada. I can’t believe you would even ask such a question. Unbelievable. But, I have seen denial in people as part of my professional and personal life. I have been accused here of being a person who is a sexist vis a vis my wife. That has finally ceased. Now, it’s amateur shrinks pontificating on wives, husbands, etc. some of whom may be failures in that dept.? On many occasions I have spoken about the BEST boss I ever had, the prosecutor in KC. She is a woman of substance and strength. She got tired of prosecuting bad guys and wanted to arrest them. So, she left being an attorney in the 70’s, which was virtually all men, and became one of the first female cops in KC, retiring as a Major a couple years ago. She is a dear friend. I have spoken here about the BEST PI who ever work for me, and that was a woman. Just 2 examples already on the record here, there are many more. You are being petty. And, I have been falsely accused of using an ad hominem, “feminazi” that was untrue. I thought that woman had integrity. She still has a chance to woman up.

    1. SWM – I finally got a chance to look at the Mother Jones article and it was horrifying. So, I have to ask, at any time have I ever done any of the things recited in the article to you?

    2. swarthmoremom, about the Amanda Hess article and her death threats, this is one of the big differences between men and women. When a woman gets threats like this, she runs to the nanny state, calls 911, the FBI, etc. and expects someone to protect her. When a man gets such threats, he is like, “oh yeah, bring it on dude. I’d like to see you try.”

      Everyone whose opinions are persuasive are likely to receive death threats. You don’t think every male President who has ever served has not received death threats? Of course they have. When I first started receiving them, it was the furthest thing from my mind to run to authorities and get protection. I bought a nice life insurance policy to make sure my family would be financially free of any debt and have enough to live on for a number of years until they could readjust their life without me. Then I just kept right on doing what I always did without writing any articles about what it is like to be a man receiving death threats or how the authorities won’t do much about it.

      1. @Davidm2575

        I think your remark regarding differences in the behavior of men and women is reasonably accurate.

        However, I also believe the remark ignores significant differences in the rates between men and women of threats, stalking and actual incidences of violence.

        I admit I have not taken the time to look up stats to support my belief.

        Your statement makes it sound as though there is a big difference in the way men and women evaluate risk and rely on government. If my guess about the incidence of violence is any where near accurate then we could reasonably believe that if men faced similar threats they would more often turn to the government for protection and that male and female evaluation of risk and reliance on government is much closer.

        I hate to admit it, but I am not going to start looking through the FBI uniform crime stats. But, I really wish there were an enthusiastic reader who could take the time to check differences in reported incidence of violence.

        This may be a tangent to your original remarks. But I think you and SMM have raised an interesting question.

    1. Elaine – you have not. You have always stood your own ground. It has been at least one liberal male who has complained to Jonathan that he has allowed others to attack you. All the conservatives thought you could stand on your own. 🙂

  18. The Lions of Discord have returned and have vowed to have the last word roar. They said they will go back to their den if nobody feeds them.

  19. Nick

    Who are all the liberal men who came to my aid? And if anyone did, how would it show that “my old fashioned” was showing? Wouldn’t it mean that THEIR old fashioned was showing? I have no control over what anyone else writes as a comment on this blog. Nice try…though. Keep on trucking!

  20. I think the ever wise lottakatz’s advice might be listened to by many posters.

    1. Annie – don’t think husbands don’t talk about their wives. I was amazed what I have learned about my friends wives, shocked actually.

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