Supporters of religious liberty clearly had the upper hand today at the U.S. Supreme Court, as the lawyers representing those offering invocation prayers at town board meetings overpowered those who tried to have the Court declare those prayers unconstitutional.
On Wednesday, the Court heard arguments in Town of Greece v. Galloway, which Breitbart News explained in detail yesterday. The Establishment Clause of the First Amendment does not allow government to establish a national religion, and the plaintiffs in this case argued that allowing opening prayers does just that.
As Breitbart News explained in our previous report, the Supreme Court upheld this practice–called legislative prayer–in the 1983 case Marsh v. Chambers. Today, the plaintiffs sought to have the Court say that Marsh only permits prayers that have no faith-specific content (such as mentioning the name of Jesus Christ), or that only Congress and state legislatures are permitted to have such prayers, not local government.
The plaintiffs here evidently knew they did not have five votes on the Court to overrule Marsh, so they sought instead for the Court to rule that all governmental bodies need to adopt a policy forbidding prayer-givers from making faith-specific references.
Justice Antonin Scalia spent considerable time discussing the problem with that argument that there are no statements with which all people agree because some are atheists. Justice Samuel Alito proved this point even among those who believe something, by challenging the plaintiffs’ lawyers to specify some prayer with which followers of every religion would agree. Their lawyer could not find one.
The critical swing vote in this case is Justice Anthony Kennedy, who has previously spoken favorably of public prayers but was the decisive vote in 1992 in declaring prayers unconstitutional at public school graduation ceremonies when children are likely present.
Justice Kennedy possibly tipped his hand today when he said the plaintiffs’ proposed rule “involves the state very heavily in the editing and censorship of prayer.” As a rule of thumb, when Justice Kennedy says that your proposal involves “censorship,” that means you lost.
Breitbart News will publish a full report on the argument later today.
Ken Klukowski is senior legal analyst for Breitbart News and senior fellow for religious liberty at the Family Research Council, and represents Members of the United States Congress in Town of Greece v. Galloway. Follow him on Twitter @kenklukowski.