Americans United Files Brief Against Sectarian Prayers at City Council Meetings with Supreme Court

On November 6, the Supreme Court will hear arguments in Town of Greece v. Galloway, a case that could decide the fate of invocation prayers at city council meetings. (My summary of the case, the people involved, and the arguments they’ll likely make can be read here.)

Earlier today, Americans United for Separation of Church and State filed its official brief with the Court — all 78 pages of it — and they responded to the right-wing talking points right up front:

This case is not about the ability of legislators to acknowledge God or seek divine guidance. It is about the right of citizens to participate in local government without being required to participate in sectarian prayers.

It is fundamental that government may not press citizens to participate in religious exercises. And whether or not Congress may sponsor sectarian prayers for those of its members who choose to participate — a question that [Marsh v Chambers] did not decide — government may not direct explicitly sectarian or proselytizing messages at the broader citizenry. The practice in Greece violates both of these principles.

The brief goes through the number of ways people pretty much have to attend Greece City Council meetings if they want to voice a complaint, request a zoning change, take an oath of office, or accept an award. High school students can even attend meetings to fulfill mandatory “participation-in-government” requirements. When that many members of the community have reason to go to these meetings, there’s even less of a reason to inject prayer in them.

It all boils down to this:

Petitioner’s prayer practice is unconstitutional for two independent but mutually reinforcing reasons. It puts coercive pressure on citizens to participate in the prayers, and those prayers are sectarian rather than inclusive.

Even if the other side argued that atheists (and everyone else who didn’t want to hear the prayers) could skip them, AU says that’s not feasible:

Avoiding the prayer would require either exquisite timing and good luck, or a confederate inside the meeting who would leave at the appropriate time to summon the conscientious objector waiting outside.

Events proceed seamlessly and in rapid succession: the call to order, Pledge of Allegiance, prayer, awards, swearing in of new employees, public forum. More than 40% percent of the time, there is no one to be sworn in and no award, so the public forum immediately follows the prayer… If no one rises to speak, the forum closes in under a minute… Citizens who attend a single meeting — to receive an award, be sworn in, apply for a permit, or address a pressing issue — would not know the Board’s rhythms and procedures well enough to avoid the prayer. For those who attend regularly, consistent tardiness would soon become apparent to the Board and other regulars.

In a savvy move, they even quote conservative Justice Antonin Scalia, who once wrote that, while non-denominational prayers might be okay at government meetings, sectarian prayers were “out of order”:

[O]ur constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington… down to the present day, has, with a few aberrations, ruled out of order government-sponsored endorsement of religion… where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).

So what’s the remedy for all this? Getting rid of government prayer altogether? Nope. AU knows that’s not going to happen. Instead, it advocates for a compromise that would allow non-denominational prayers before government meetings that are strictly voluntary:

We assume that some form of prayer will be allowed at meetings of local legislative bodies, and we have not, at any point in this litigation, asked that they be eliminated altogether. If prayers are to be presented, the challenge is to do so with the least violence to constitutional principles and to conscience.

Pressure to join in the prayers is inherent in Board meetings; it cannot be eliminated without discontinuing the prayers. But the pressure can be ameliorated. The Board could schedule the prayer a few minutes before meetings are called to order, and make clear that the prayer is only for those who choose to participate. The podium could be turned so that chaplains face the Board. Chaplains could be instructed not to request citizen participation.

It’s a solid argument. The question now is whether the justices will see it that way, too. We won’t get any more hints regarding their decision until the oral arguments take place and the justices are able to ask questions to representatives from both sides.

About Hemant Mehta

Hemant Mehta is the editor of Friendly Atheist, appears on the Atheist Voice channel on YouTube, and co-hosts the uniquely-named Friendly Atheist Podcast. You can read much more about him here.

  • the moother

    I like their solution. On the face of it they are not asking for prayers to be banned. This would lead, of course, to the predictable cries of persecution. Instead, they are asking for prayers to be moved to before the meeting. The result will be that the god-botherers will begin to feel like outcasts.

    So, instead of them being able to rally support by crying “PERSECUTION!!!”, they will instead be made to sit in a corner wearing the proverbial silly hat.

    If, that is, we win the case. Let us pray.

    • Mitch

      Are we taking any bets on someone (during the case or afterward, it doesn’t matter) trying to say that the founding fathers prayed during their meetings?

  • Left Coast Atheist

    I never thought the word “prayer” was the right word for these. These are sermons. Prayers are directed at God. Sermons are directed at people. If they wanted to direct their thoughts to God then there is no need to say it out loud and there is especially no need for amplification.

  • EchoDodgerBravo

    What about the City Council members? Doesn’t the solution force any atheist or other non Christian council members to participate? I don’t think this is a good solution or good argument.

    • stop2wonder

      Exactly. Forcing would be atheists into a mandatory prayer is, in fact, an unconstitutional religious test of office.

    • C Peterson

      No. It is before the meeting. There is no need for council members to be present or to participate. It isn’t official time, just a voluntary gathering before the meeting.

      Stupid, of course, but perfectly legal.

  • f_galton

    America should not be meddling in the internal affairs of Greece or any other country for that matter.

    • islandbrewer

      Zeus will be pissed, then he’ll try to fuck everybody while in the form of some farm animal.

      • baal

        I had to do a class presentation on Zeus once. It was on my third story summary when I noticed the class starting to lose it. It was only then that I realized I was endlessly saying things like, “So Zeus turned into a swan and had sex with her.”

        • Fred Bailey

          The gods and goddesses of the Greeks were local to particular cities. Many of the stories of the kind you mention were intended to cement alliances and enable people of one polis to honor the local god of another with whom they had contact. It’s too bad you didn’t know this! You could have skipped a lot of those stories.

  • ZenDruid

    I’d like to hear someone read a letter to Santa as an invocation…

    “Dear Santa,

    Could you bring better quality control over the people in government this Christmas?”

  • Brian Westley

    In reading through the full brief, I noticed that the preacher for the Nebraska legislature in the Marsh case was also part of the amici in favor of prayer, and he lied in his new amicus!

    Thirty years ago back in Marsh, he stated that he used to give Christian prayers, but after a Jewish legislator complained, he changed to only non-sectarian prayers, and he further stated that using the name of “Christ Our Lord” is not consistent with the “Judeo-Christian tradition”.

    Yet in his amicus in Greece, he now claims that his statements 30 years ago only meant that his prayers didn’t specify details upon which Christian denominations differ. But that doesn’t match with what he said about “Christ Our Lord” being inconsistent 30 years ago — it would not be inconsistent if he was talking about only Christian prayers.

    Just another liar for Christ.

    • baal

      I also take their lying as a sign that they know they are breaking the law. They are feeling psychic pressure to ‘gild the lily’.

  • eric

    Very nice approach to the problem. Even if it doesn’t work, I’d think this would be a model for how to attack the issue at the state and local level.
    1. Focus on the practical ‘requirement’ of participation by the citizenry (in order to effectively participate in the meeting) when making the complaint.
    2. Instead of calling for abolishment, request the prayer be shifted to before official “meeting time.”
    While its never going to work with Scalia (even quoting him isn’t going to work), I can see this being very appealing to Roberts and Kennedy. The ACLU is giving them a way to ‘split the baby’ – allow local government to keep having prayers, while satisfying their legal complaint about a 1st amendment violation.

  • Q. Quine

    I am glad to see this case get this far even though I don’t give it much chance with the current pro-religion bias on the Court. However, it won’t lose by enough margin to set precedent (likely 5 to 4), and I am hoping for a well written dissenting opinion that will be the basis for re-hearing at a future time when folks like Scalia and Thomas are gone.