Today, the Supreme Court of the United States upheld the legislative prayer practice of Greece, New York.
Officials in Greece, a predominately Christian city, had invited local clergy to deliver invocations prior to opening their legislative session. While the city never turned any clergy away, the vast majority of prayers were Christian, and many of them expressly invoked Jesus and the cross. Today, the Supreme Court held that the practice does not violate the Establishment Clause of the First Amendment.
While a significant victory, the opinion is complicated, and so a roadmap is necessary.
The Establishment Clause of the First Amendment reads: “Congress shall make no law respecting an establishment of religion.” But what does it mean to “establish” a religion? From this small phrase has developed a thicket of law. Essentially, the Supreme Court has three tests to determine if a government action impermissibly establishes religion:
1) The excessive entanglement test, as outlined in Lemon v. Kurtzman (1971);
2) The coercion test, as outlined in Lee v. Weisman (1992); and
3) The endorsement test, as outlined in Lynch v. Donnelly (1984).
In today’s opinion, however, the Court sidestepped all this complication, reaffirming the 1983 case Marsh v. Chambers, which upheld funding a chaplain to lead legislative prayer as permissible under the First Amendment. The Court today held that “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”
In other words, traditional intersections of religion and government cannot possibly be prohibited by the First Amendment. Legislative prayer, for example—even aggressively religious prayers that invoke Jesus or ask the audience to participate—has been a part of our nation since the Founding. The very Congress that passed the First Amendment, for example, opened its sessions with legislative prayer by a paid chaplain.
While not expressly adopting any of the three aforementioned tests, the Court did seem to limit the “endorsement test,” which was developed by former Justice Sandra Day O’Connor and first expressed in her concurrence in Lynch v. Donnelly. Holding that federal courts must adjudicate when and where government is “endorsing” religion has always been problematic because applying the test requires courts to make quasi-theological pronouncements. And, in fact, today’s ruling noted that “[t]o hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree [than allowing legislative prayer].”
Rather, there are certain intersections of religion and government—endorsements, if you will—that are authorized by the Constitution. Legislative prayer, for example, involves prayers with what the Court today called “a commonality of theme and tone,” which endorse “values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws.” Such a traditional practice, according to the Court, cannot possibly be unconstitutional.
It is this shared tradition that was vindicated today—not in abstract, neutral terms but with concrete reference to long-standing practice and shared values. And in Greece, New York, a peaceful practice of opening legislative sessions with prayer will continue.