On October 7, 2013, I wrote Prayer on the Chopping Block Again, lamenting the push to silence religious freedom through the judicial process. The tide against public prayer began with these few words:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” These few words uttered 51 years ago in an invocation approved by the New York State Board of Regents ignited the flame that now slowly burns away religious freedom in America today.
On June 25, 1962, the United States Supreme Court in Engel v. Vitale found that by using its public school system to encourage [voluntary] recitation of the Regents’ prayer, the State of New York adopted a practice wholly inconsistent with the Establishment Clause under the First Amendment and is therefore unconstitutional.
This decision ostensibly banned government-endorsed prayer from public schools and boasts that where a religious expression offends a nonbeliever, “Silence it.”
Justice Potter Stewart wrote the dissent in the Engel case properly interpreting, in my opinion, the Framer’s intent behind the Establishment Clause which was that the federal government shall not make (establish) a state religion. Stewart said, “I think to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.”
Once again, the fight for religious freedom (or separation of church and state as some call it) came before the United States Supreme Court for oral argument on November 6, 2013 in Town of Greece v. Galloway.
In this case, the city’s practice of opening its council meetings with ceremonial prayer offered by volunteer chaplains-Christian and non-Christian, scheduled on a first-come, first-served basis- was challenged. The outcome of this case is said to impact the expression of religion in public including the constitutionality of the “In God We Trust” motto on the U.S. currency, prayers at presidential inaugurations, and the Supreme Court’s opening statement “God save the United States and this Honorable Court.”
In Town of Greece, Susan Galloway argued that the ceremonial (often Christian) prayers pressure participation and promote Christianity which then offends those who are not Christian. The District Court sided with the Town of Greece, against Galloway, finding no evidence that non-Christians were excluded or coerced to participate in the prayers.
On appeal, the Second U.S. Circuit Court of Appeals found that the prayers were in fact unconstitutionally sectarian in nature (religious) and established Christian beliefs and religion in the town.
Most of the cases deciding the constitutionality of a law under the Establishment Clause are set in the context of public schools and have cut against religious expression. The only legal precedent that exists for legislative prayer is Marsh v. Chambers.
In Marsh v. Chambers (1983), “legislative prayer in Congress [became] the touchstone of what the Establishment Clause allows, and [the court] held that legislative prayer is constitutional unless the prayer opportunity is exploited to proselytize one faith, intentionally aggressively advocate one faith, or disparage other faiths. There is no broad prohibition on effectively advancing religion, since all prayers by their very nature advance religion to some degree.” 
On May 5, 2014, Justice Kennedy writing the 5-4 majority opinion applied the coercion test  essentially agreed with Chief Justice Burger who wrote in Marsh, “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.”
Prayer is the ultimate expression of one’s faith. Prayer is personal, often expressed corporately in public (at legislative gatherings), and is often Christian. If the truth were told, the opponents of prayer in public are simply intolerant of Christianity and the heart of the Town of Greece case and the related cases is simply anti-Christian. Christianity has been systematically marginalized in our culture while the Obama administration promotes the education of and outreach to Islam in public schools (K-12). (Where are the lawsuits against that?) With that as a backdrop, this week, the United States Supreme Court rightly, and perhaps inadvertently, scored one for G-d’s team.
Marc Little is the author of The Prodigal Republican: Faith and Politics. His web site is The Prodigal Republican.
Photo credit: kenudigit (Flickr Commons)