A 5-4 ruling, with Kennedy swinging towards conservatives this time to make a majority. (Among the public, it’s … not as close as that.) The Court held more than 30 years ago that prayers before a legislative meeting are simpatico with the First Amendment, finding that “the practice of opening legislative sessions with prayer has become part of the fabric of our society.” Today’s case explored a wrinkle in that ruling: What if the prayers are usually given by members of one faith? And what if, instead of vaguely mentioning “God’s blessings,” they invoke beliefs specific to that faith, e.g., a Christian minister praying for Jesus Christ’s guidance? Does that go too far towards an Establishment Clause violation?
Held: Nope. Kennedy, who wrote the opinion, argued that forcing the legislature to closely supervise each minister who prays before them to make sure they’re not overly specific would itself be a problem for the Establishment Clause. Better to let the minister pray in a sectarian manner, even if that means references to Jesus or Allah and his prophet, Mohammed. Here’s the money quote via Gabe Malor:
From Town of Greece, this will be increasingly important as time goes on: pic.twitter.com/sxPzgnRzaq
— Gabriel Malor (@gabrielmalor) May 5, 2014
But won’t sectarian prayer raise the risk of religious indoctrination? It’s one thing to pray nonspecifically to “God,” but if you’re praying to Jesus then you’re obviously endorsing Christianity. Kennedy’s answer to that is interesting: The reason it’s okay to have prayers before a legislative session is because those prayers aren’t really designed to spread the faith, they’re more just to “solemnize” the occasion. That reminds me of the idea of “ceremonial deism,” a term that’s been used in dissents before to mock the Court’s willingness to tolerate minor government endorsements of religion so long as no one takes the endorsement very seriously. Technically “In God We Trust” may violate the idea that the feds shouldn’t be taking sides between believers and nonbelievers, but it’s so vague and so rote that it’s basically lost all religious meaning, which makes it okay. Kennedy’s offering a twist on that. Quote:
As long as the chaplain’s asking his particular God for general blessings, he’s okay. Once he starts in with “Jesus, turn the hearts of the nonbelievers,” though — or once the legislature itself starts praying during the session — he’s/it’s on shaky ground, since that would introduce an element of actual coercion. (Incidentally, on the question of coercion, the Court’s conservatives were split today between Kennedy, Roberts, and Alito on the one hand and Thomas and Scalia on the other. The first group made clear that even small amounts of coercion in the opening blessing could violate the Establishment Clause. The second group argued that the Clause is chiefly a federalism prohibition and shouldn’t reach the “subtle pressure” of legislative prayer, esp.) Kennedy’s essentially jettisoning the deism part of “ceremonial deism” but keeping the ceremonial part.
Wait, though. None of this answers the other question up top — namely, what happens if every legislative session is being opened with prayers from the same faith? If only Christians give the blessings, wouldn’t that be an Establishment Clause violation? It depends, says Kennedy, on whether that’s by design or just a byproduct of town/city demographics:
If your town is 99 percent Christian, you don’t have to bus in some imams to give the blessing now and then. As long as no one’s formally barred from delivering the prayer because of their faith, you’re within the law — for now, at least. All of these hot-button Supreme Court rulings are one conservative vacancy away from being overturned.