A starkly divided Supreme Court on Monday upheld a small New York town’s right to open its board meetings with sectarian prayer, further affirming that the firewall between church and state is not absolute.
In a 5-4 decision, the court cited traditional ties between religion and government that date back to the nation’s earliest days.
Chief Justice John Roberts and Justice Samuel Alito joined Kennedy’s opinion in full. Justices Clarence Thomas and Antonin Scalia agreed in part, concurring that the prayer tradition in Greece, N.Y., does not violate the Constitution’s prohibition against the government’s establishment of any religion.
The ruling in the case, known as Town of Greece v. Galloway, comes more than three decades after the court turned aside a 1983 challenge to the prayer at the opening of sessions of the Nebraska state legislature.
Some viewed Monday’s ruling as going even further than that decision. In the Nebraska case, for instance, the prayers were nonsectarian, while the Greece prayers are almost always explicitly Christian.
“This allows cities to be more visibly aligned with a particular religion than ever before,” said Erwin Chemerinsky, a constitutional law professor at the University of California at Irvine. “This is a significant further erosion of the wall separating church and state.”
Kennedy stressed that his ruling did leave limits in place on prayers during government meetings. He noted that, in the Greece case, the invocation was restricted only to the opening of the session and did not overlap with legislative business.
But in its dissent, the court’s liberal wing warned of the dangers of injecting singular religious doctrine into government proceedings where people of all faiths come to do business and should expect to be treated equally.
“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,” Elena Kagan wrote in a dissenting opinion.
“That is not the country we are, because that is not what our Constitution permits,” wrote Kagan, who was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonya Sotomayor. “Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture.”
The majority opinion reversed a ruling by the 2nd Circuit Court of Appeals that found the Greece prayers gave the appearance that the town endorses Christianity, violating the Constitution’s establishment clause.
Opponents of the practice said Christian prayers and clergymen had dominated the opening of the meetings. They pushed for prayers ahead of board meetings to be restricted to inclusive messages and refer to a generic God rather than a Christian one.
Ultimately, the Supreme Court concluded that requiring the prayer to be nonsectarian would force the court to supervise and censor religious speech.
Conservative groups hailed the finding as a victory for the First Amendment.
“This is a common-sense decision upholding our long tradition of legislative prayer, which started with the First Congress,” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation.
Advocates for clear separations between religion and government bemoaned the ruling, saying it promotes inequality.
“It conveys the unmistakable message that those who do not share the majority’s beliefs are second-class citizens,” attorney Ronald A. Lindsay, president of the Center for Inquiry, a pro-secular government group.
“The majority’s reliance on tradition ignores the enormous changes in American society, and dismisses the concerns of the rapidly growing population of nonbelievers, as well as those who have beliefs that differ from mainstream Christianity,” he said.
University of Notre Dame law professor Richard Garnett, however, downplayed the ruling’s implications, saying it does little more than affirm the 1983 decision allowing legislative prayer.
Though split over the details of the Greece case, Garnett said there was consensus between both sides behind the basic premise that there is a place for prayer — at least in some form — at government meetings.
“All of the justices agree that legislative prayer can be permissible because of its long standing roots in our tradition,” he said.
— Mario Trujillo contributed.
— This story was updated at 7 p.m.