The Supreme Court Voted In Favor of Public Prayer, But Only 5-4 (Forbes.com) May 5, 2014

The Supreme Court announced its much-awaited decision on whether prayer prior to a town board (city council) meeting violates the Establishment Clause of the First Amendment of the U.S. Constitution. The answer is such prayers are ok, but the vote was 5-4, meaning pray quickly in case the either the makeup of the court or the mind of one judge changes.

Still, it was an important decision in many respects. The primary reasoning of the Court is that such ceremonial prayers have long been practiced in this country at all levels, from the U.S. Senate to the local city hall. The long-held nature of the practice itself, the majority of the Court held, suggests that such prayers do not violate the Constitution. This answers a question I have entertained myself: how can a phrase like “one nation under God” in the Pledge of Allegiance be constitutional for decades until a single federal judge wakes up one morning and decides it’s not legal anymore. Is constitutional law so subject to change that things that are permissible for centuries suddenly, overnight are not anymore? So here’s a vote that history and practice mean something, at least.

Another important principle from the decision was the Court’s holding that a person’s discomfort with religious expression is not the same thing as religious coercion under the First Amendment. Those bringing the lawsuit were attending a town board meeting in Greece, N.Y. where a Christian prayer had been offered to open the meeting and they felt uncomfortable, as if they were forced to participate against their will. But the Court noted that such prayers in the early moments of a council meeting were largely ceremonial, focusing on seriousness and tradition, and were addressed to the council itself, not the audience. People were free to come and go, not required to sit there like students at a high school graduation. In that context, the Court said that feeling offended or disrespected was not a violation of the First Amendment, adding that “offense . . . does not equate to coercion.”

The Court was clearly reluctant to get into the business of overseeing the actual language of public, ceremonial prayers. The 4 dissenting judges were uncomfortable with the heavily Christian nature of some of the prayers, but the majority held that such content was not objectionable. The majority ruled explicitly against an evolving religious diversity marginalizing Christian prayer, holding that the “decidedly Christian nature of these prayers must not be dismissed as a relic of a time when our Nation was less pluralistic than it is today.” As long as the prayer opportunity does not proselytize or advance or disparage some particular faith or belief, judges will not oversee its content.

Somewhat surprisingly, even the dissenting judges (Elena Kagan, Stephen Breyer, Sonia Sotomayor and Ruth Ginsburg) acknowledged that a public forum such as a town hall or legislative session “need not become a religion-free zone.” That seems to be the goal of most of these challenges to religious expression, to cleanse the public square of religion. But this, of course, is not what the Establishment Clause requires, and it’s encouraging that all nine justices essentially agreed on that point. What the dissenters would have preferred was greater diversity among those leading the prayers and more neutrality of language. But the majority thought it was a mistake for courts to engage in that kind of detailed scrutiny of public prayer, so long as there was no coercion.

This was one more chapter in the unfolding drama of constitutional interpretation. The “living constitution” judges feel that changes in the diverse nature of our society must continue to transform constitutional standards such as First Amendment Establishment Clause litigation. A narrow majority has held that history and tradition still mean something, and that diversity must itself be more tolerant, even to the point of discomfort and offense, but not to the point of the constitutional prohibition against religious conversion. That’s settled law for now—by one vote on the Supreme Court.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/05/05/the-supreme-court-voted-in-favor-of-public-prayer-but-only-5-4/