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Prayer Wins… Barely

In a decision that is encouraging and disconcerting at the same time, the United States Supreme Court, in Town of Greece v. Galloway, said yesterday that it does not violate the First Amendment’s Establishment Clause to begin a legislative body’s meeting with prayer, even if it uses explicit Christian or other religious language.

The town of Greece, New York had a practice of beginning local board meetings with prayer.

 The Plaintiff’s argued that this practice was an unconstitutional establishment of religion because the prayers were largely Christian.

While we could not confirm the reports, many have speculated that the Plaintiffs are connected to the growing national organization, “People Who Need a Hug and Something Productive To Do.”

The court agreed with the town of Greece that the practice was constitutional because the opportunity to pray was made available to residents of all faith.  The fact that Christians took advantage of the opportunity more often than others was not a reason to ban it altogether.

They also noted that the practice dates back to the founding of the republic.

It should be hard to argue that the founders intended to ban the practice of opening meetings with prayer in the First Amendment when the people who wrote the First Amendment regularly opened public meetings with prayer.

The concerning part of this decision is that the Supreme Court was split 5-4.

That means the four members of the Supreme Court (Ginsberg, Sotomayor, Kagan, and Breyer) believe some prayers can be so Christian as to be unconstitutional.

One can’t help but wonder how the court would determine which prayers were constitutional and which prayers weren’t.  Perhaps a permitting process would be established with a timely, user friendly, appeal process if you didn’t like the original decision.

As silly as this sounds, you may recall that the IRS asked about the content of people’s prayers as part of a non-profit application review. 

Many would argue that government regulation of speech — religious speech in particular — is exactly what the First Amendment was created to prevent.  But times, they are a changin’. It wasn’t that long ago that if you had told someone that they could be forced to take pictures of something they objected to, they would have told you to go back to the Kremlin.

Justice Kagan, who wrote the dissent arguing that the prayer was unconstitutional, did not say all prayer in public meetings should be banned.  Instead, she suggested that it should be done by chaplains rather than citizens.

Presumably that would allow the kinds of prayers to be more easily monitored by the government to ensure the kind of diversity she believes is required for it to be permitted at all.

She felt it was unconstitutional because too many Christians took advantage of the opportunity.

“So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

You know, maybe she’s onto something.  For those who have not done a good job taking advantage of the opportunities presented by elections, this could provide an opening.  After all, Washington hasn’t had a Republican Governor since 1985. Hardly an equal share in government.

Does this bother Justice Kagan?

The good news is that people still have the freedom to pray in public meetings without the government telling them which words they can use. But don’t get too comfortable. We were one vote away from prayer permits, or something like that.

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