It's hard to believe that, in 2013, any question remains regarding the constitutionality of official government prayers, but the Supreme Court will revisit the issue for the first time in more than a decade when it hears oral arguments this November in Town of Greece v. Galloway. The lawsuit was brought by several Greece citizens who grew weary of having Christian prayer imposed on them at the start of Town Board meetings. Today, the ACLU and its allies filed a friend-of-the-court brief in the case, arguing that the Establishment Clause of the First Amendment prohibits legislative bodies from opening their meetings with official prayer.
Government-sponsored prayer is anathema to a cardinal rule of the Establishment Clause: The government must remain neutral on matters of faith. The Supreme Court has thus ruled that public schools may not subject students to official prayer in class, at graduation, or at football games. Lower courts have agreed, barring governmental prayer in various other contexts. As these decisions recognize, when the government breaches this fundamental principle by promoting prayer, it unfairly pressures people to adopt the favored beliefs; it devalues those beliefs by co-opting them for official, unsacred purposes; and it is a recipe for religious conflict.
Government prayer is especially troubling when it is specific to one religion because it tends to exclude those of minority faiths. For example, although a Jewish, Muslim, or Sikh resident waiting to present a zoning application to the local government in Greece might be able to participate in a more generic invocation, she would be at a loss when it comes to a prayer offered in the name of "Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life." That's just one of the official prayers delivered by invited clergy at the Town's Board meetings, over two-thirds of which have been explicitly Christian since the practice began in 1999.
The Supreme Court can only blame itself for the prolonged debate over legislative prayer. Despite the clear harms associated with official religious exercise, in 1983, the Court carved out a narrow exception to the general constitutional ban on government prayer. In Marsh v. Chambers, an ACLU challenge to the Nebraska Legislature's invocation practice, the Court ruled that a long history of legislative prayer dating back to the First Congress was sufficient reason to disregard the First Amendment's neutrality mandate.
We disagreed with the Court's reasoning in Marsh then, and we still disagree now. If there's one thing that the ACLU's 90-plus years of fighting for civil rights and civil liberties have taught us, it's that tradition should not, and cannot, trump constitutional principle. In our brief, we urge the Court to ensure, at a minimum, that legislative invocations remain inclusive and neutral among faiths by avoiding religious beliefs and doctrine that are specific to one religion. But, as we also point out, the only way to truly comply with the Establishment Clause and respect the rights of all minority-faith adherents, as well as non-believers, is to overrule Marsh and eliminate the legislative-prayer exception.
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