Supreme Court Watch

 Judge ends ban on county council prayer after ruling

Kennedy writes content of prayer is not significant

By Steve Lash
The Daily Record Newswire

BALTIMORE — The U.S. Supreme Court may have answered the prayers of the Carroll County Board of Commissioners, ruling Monday in a case from New York that religious invocations at the start of town council meetings do not violate the Constitution even if they routinely stress Christianity.

Prior to the high court’s ruling, a federal judge in Baltimore enjoined the Carroll County board from opening its sessions with a prayer, noting that the invocations frequently made reference to Jesus Christ and thereby violated the constitutional mandate of separation of church and state.

Shortly after the Supreme Court’s 5-4 decision in the New York case, Judge William D. Quarles Jr. vacated the preliminary injunction issued on March 26 in U.S. District Court in Baltimore. Quarles wrote that his ruling was “consistent with the decision” of the Supreme Court’s majority.

David A. Niose, an attorney for those challenging the Carroll County prayers, indicated the lawsuit will continue and that “we’ll most likely be asking [Quarles] to reconsider the order.”

Monday’s Supreme Court’s ruling appears to be “limited to legislative prayer led by chaplains and clergy,” not, as in Carroll County, by the commissioners themselves, said Niose.

He cited language in Justice Anthony M. Kennedy’s majority opinion that “the inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers.”

The court “definitely seemed to be more tolerant of the idea of guest clergy or chaplains coming in from the outside,” said Niose, legal director of the Washington-based American Humanist Association. “The court didn’t seem to be giving a thumbs-up to legislators leading the prayer. That seemed to be outside the scope of the court’s decision.”

Ceremonial, traditional

Kennedy wrote that the content of the prayers is not significant as long as they do not denigrate non-Christians or proselytize.

The ruling by the court’s conservative majority was a victory for the town of Greece, N.Y., outside of Rochester. The Obama administration sided with the town.

In 1983, the court upheld an opening prayer in the Nebraska legislature and said that prayer is part of the nation’s fabric, not a violation of the First Amendment. Monday’s ruling was consistent with the earlier one.

Kennedy, writing for the majority, said the prayers are ceremonial and in keeping with the nation’s traditions.

But Justice Elena Kagan, writing for the court’s four liberal justices, said, “I respectfully dissent from the Court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”

Kagan said the case differs significantly from the 1983 decision because “Greece’s town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content.”

Quarles, in granting the preliminary injunction against Carroll County last March, had sounded much like the dissenting justices in noting that at least 40 percent of the prayers delivered by the commissioners made sectarian references, such as to Jesus Christ, and that no evidence was presented that the prayers referred “to any non-Christian deities.”

“This demonstrates more than infrequent, occasional, or incidental sectarian references standing alone, especially in light of the lack of references to other deities,” Quarles wrote in a memorandum opinion accompanying the preliminary injunction order. “At this time, the record indicates that the prayers invoked by commissioners before board meetings advance one religion to the exclusion of others. Accordingly, the plaintiffs have demonstrated likely success on the merits.”

Two county residents and the American Humanist Association have joined the lawsuit first filed May 1, 2013, in U.S. District Court by two residents against Carroll County. The plaintiffs seek a judicial order permanently enjoining the board from beginning its sessions with a prayer that they argue violates the Constitution’s First Amendment prohibition against governmental establishment of religion.

The plaintiffs also seek an award of nominal damages and attorneys’ fees.

The case is Hake et al. v. Carroll County, Md., No. 1:13-cv-01312-WDQ.

Christian-oriented

In the Greece case, a federal appeals court in New York ruled that Greece violated the Constitution by opening nearly every meeting over an 11-year span with prayers that stressed Christianity.

From 1999 through 2007, and again from January 2009 through June 2010, every meeting was opened with a Christian-oriented invocation. In 2008, after residents Susan Galloway and Linda Stephens complained, four of 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha’i congregation.

A town employee each month selected clerics or lay people by using a local published guide of churches. The guide did not include non-Christian denominations, however. The appeals court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there.

The two residents filed suit and a trial court ruled in the town’s favor, finding that the town did not intentionally exclude non-Christians. It also said that the content of the prayer was not an issue because there was no desire to proselytize or demean other faiths.

But a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that even with the high court’s 1983 ruling, the practice of having one Christian prayer after another amounted to the town’s endorsement of Christianity.

Kennedy, however, said judges should not be involved in evaluating the content of prayer because it could lead to legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.”

He added, “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.”

Kennedy himself was the author an opinion in 1992 that held that a Christian prayer delivered at a high school graduation did violate the Constitution. The justice said Monday there are differences between the two situations, including the age of the audience and the fact that attendees at the council meeting may step out of the room if they do not like the prayer.

Kennedy and his four colleagues in the majority all are Catholic. They are: Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In her dissent, Kagan said the council meeting prayers are unlike those said to open sessions of Congress and state legislatures, where the elected officials are the intended audience. In Greece, “the prayers there are directed squarely at the citizens,” she said. Kagan was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Kagan, Breyer and Ginsburg are Jewish and Sotomayor is Catholic.

Kagan also noted what she described as the meetings’ intimate setting, with 10 or so people sitting in front of the town’s elected and top appointed officials. Children and teenagers are likely to be present, she said.

The Supreme Court case is Greece v. Galloway, 12-696.

The Associated Press contributed to this story.