What Are You Gonna Do? Arrest Me for Praying?

What Are You Gonna Do? Arrest Me for Praying? November 7, 2013

The Supreme Court heard arguments this week on whether or not the town of Greece NY had violated the establishment clause of the First Amendment to the Constitution of the United States. The reason?  Most of the prayers that opened its city council meetings were given by Christians.

From what I’ve read, Greece opened its city council meetings with prayers from many faiths through the years, including Jewish and pagans. The argument is that most of the prayers were offered by Christians, which means …


Evidently it means that Americans United for Separation of Church and State found a couple of people to say that this offended them and were who willing to be plaintiffs in a court case. This Court case has ended up at the United States Supreme Court.

The issue in Town of Greece v Galloway, as described on the Supreme Court Blog, is …

Issue: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

What is the establishment clause that gives the federal government the right to intrude into small-town city council meetings and censure the speech of citizens who address those meetings? Just this: Congress shall make no law respecting an establishment of religion.

That clause, (which, by the way is an accurate description of it, it is a clause and not a sentence) is the pry bar that those who hate religion in general and Christianity in particular have used for decades to attack the presence of religious speech in the public sphere.

Of course, the clause is not a sentence. Here the entire sentence in which this clause rests: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

Those of you who read the comments on this blog might have noticed that there is a group that decries the fact that these rights — all of them, by the way — apply to Christians as well as other citizens.

“Christians can believe whatever they want,” they say, “but I don’t want them trying to force their beliefs on me.”

They are not talking about mobs of Christians showing up on their front yard carrying torches and demanding that they get baptized.


What they are talking about and speaking against and trying to stop is the exercise of these free rights by American citizens who happen to also be Christians. What they are objecting to is that there are people, some of whom are  motived by their Christian faith, who vote according to their conscience and petition their government either by contacting their elected officials or through the courts.

They steadfastly refuse to admit this, even as they maintain the position, but what they are objecting to is the freedoms of other Americans to disagree with them and to act on that disagreement.

In other words, what they object to is the fact that Christians have and exercise the same rights that they do. They try to frame political involvement by Christians as somehow or another a violation of “separation of church and state” or, failing that, an attempt to “force other people” to do something or other.

But it is not. All Americans, including Christians, have these rights. That is called democracy.

This one-sided application of American rights and freedoms shows up with boring repetition in the com boxes and public debate. It also shows up in court cases. The establishment clause, it would seem, is the only part of the First Amendment that those who want to limit religious expression in the public sphere believe should apply to Christians.

All that stuff about the government not interfering with the free exercise of religion, or everyone having free speech and the right to petition the government, including Christians, is nixed right out of their conversations and their court cases. These same people will make self-righteous statements about how they support the Constitution, but what they mean is they support their own interpretation of the Constitution and want to use that interpretation as a hammer to beat those who disagree with them into silence.

For the past few decades, the Supreme Court has been playing catch to their throw. Every case that gets tossed to the Court ends up limiting religious expression in public situations. The Town of Greece v Galloway is particularly galling because it is aimed directly at one religious group, and that group is Christians.

I don’t know what the Supreme Court is going to do with this case. But I do know that I, for one, will feel no compunction to obey any ruling limiting my right to pray in public. I say that as an elected official and an American citizen who has the right to free speech.

I’ll pray if I want.

What are they going to do? Arrest me for praying?

From Fox News:

The Supreme Court is wrestling with the appropriate role for religion in government in a case involving prayers at the start of a New York town’s council meetings.

The justices engaged in a lively give-and-take Wednesday that highlighted the sensitive nature of offering religious invocations in public proceedings that don’t appeal to everyone and of governments’ efforts to police the practice.

The court is weighing a federal appeals court ruling that said the Rochester suburb of Greece, N.Y., violated the Constitution because nearly every prayer in an 11-year span was overtly Christian.

The tenor of the argument indicated the justices would not agree with the appellate ruling. But it was not clear what decision they might come to instead.

Justice Elena Kagan summed up the difficult task before the court when she noted that some people believe that “every time the court gets involved, things get worse instead of better.”

Greece is being backed by the Obama administration and many social and religious conservative groups in arguing that the court settled this issue 30 years ago when it held that an opening prayer is part of the nation’s fabric and not a violation of the First Amendment. Some of those groups want the court to go further and get rid of legal rules that tend to rein in religious expression in the public sphere.

On the other side are the two town residents who sued over the prayers and the liberal interest groups that support them. Greece residents Susan Galloway and Linda Stephens say they and others who attend the meetings are a captive audience and should not be subjected to sectarian prayers.

At its broadest, the outcome could extend well beyond prayer and also affect holiday displays, aid to religious schools, Ten Commandments markers and memorial crosses. More narrowly, the case could serve as a test of the viability of the decision in Marsh v. Chambers, the 1983 case that said prayer in the Nebraska Legislature did not violate the First Amendment’s clause barring laws “respecting an establishment of religion,” known as the Establishment Clause.

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33 responses to “What Are You Gonna Do? Arrest Me for Praying?”

  1. It seems to me that the Establishment Clause prohibits Congress from passing a law that establishes a state religion. It seems to apply specifically to Congress and not to towns.

  2. I’m hopefull that SCOTUS starts rejecting all the restrictions that have been places on religion in the public square these past forty years. Even the Liberals on the court have to see that people have a right to express themselves, even if it means expressing religious values. Anyway, I’m surprised to find out that SCOTUS has their own blog.

  3. It is important to distinguish between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

    Here, the question is not so much whether individuals have the freedom to pray; they do. The question is whether the government may constitutionally sponsor a prayer event as part of its official meetings.

  4. I have no problem with you or anyone else praying in public. It is when elected officials waste time and tax dollars leading prayers that have nothing to do with the meeting at hand that I have a problem. If elected officials just can’t start their work without praying on the tax dime, they should enforce a moment of silence so everyone can pray or not pray as they choose.

  5. Before the 14th Amendment was passed, and before the Supreme Court ruled adopted the “incorporation” doctrine, you would have been correct.

  6. So, if my secretary says “be blessed” to someone over the phone, that would or would not be violating your interpretation of the Constitution?

  7. The elected officials at that meeting are being paid to offer/listen to a prayer or invocation rather than doing the job that they are actually paid to do, which is govern.

    There are very few cases where these subsidized prayers will ever be inclusive of everyone at the meeting, so what is the point of doing them in a government setting?

  8. That’s nonsense. Elected officials are not paid by the hour. Also, the court case under discussion is a small town. Many small towns do not pay their city council members at all.

  9. Rebecca, Greece NY is not a small town but a very large suburb of Rochester. According to the 2010 census, Greece had a population of 96,000.

    But, yes, the salaries of elected officials are a flat amount. In 2010, the town councilmen were paid roughly $9600/year. The town supervisor, who chairs the town council, earned $88,000. (I guess the position of supervisor is similar to the position of mayor)

    That said, I don’t think the objection of the Greece residents was that the prayers prevented the town council from completing its business. The objections were that they didn’t want to have to sit through a religious exercise when they attended town council meetings.They claimed that a religious practice was being imposed upon them.

  10. I think the 14th Amendment would prohibit the state from doing what the 1st Amendment prohibits Congress from doing. Still, I don’t see in the wording of any applicable law the prohibition against prayer in a town meeting.

    Having said that, I think it is up to all Christians to be mindful that everyone isn’t Christian and show respect for other worldviews including agnosticism, atheism and for other religions.

  11. It is an honor to be in agreement with you, Mr. Barbiei. You are a gentleman and a scholar. I was going to add that it is somewhat impolite for religious people to practice their faith with non-religious or people of a different religion in attendance, but I have enjoyed the singing of “God Bless America” during the 7th inning stretch at the baseball games. That and, for once I’d like to bask in the light of having you agree with me.

  12. Actually, the Supreme Court has ruled on this before and said that prayers such as this are Constitutional. I wonder if they will overturn themselves in this matter.

  13. Thank for the info Dale. Even though Greece is a good-sized town, this question still applies to small cities and town which do not pay their city council.

  14. Oh yes, you certainly are correct, Rebecca. I don’t think the controversy is about the cost of such prayer. The cost is zero, unless you counted such things as an extra minute of electrical usage because the lights had to be left on for a little bit longer.

  15. I haven’t read through the SCOTUS case, but I wonder if this controversy is about a freedom from religion vs. freedom of religion? Does the non-establishment clause really mean no religion at all in government functions? Or that different religious viewpoints be given equal weight?

    From the Fox News article, the town does not seem to have done a very good job at being open to other religious viewpoints. I think that is a strike against the town, rather than a strike against the principle of allowing an invocation.

    I wonder if simply allowing an increased diversity of prayers, including some atheist introductory remarks, would be enough?

  16. I don’t know why everybody has to have an issue with everything. People seem to have nothing better to do than make trouble for the flimsiest reasons.

  17. A Gay Pride Parade is not a religious event and also, people can choose not to participate or attend it. It is like saying that it is impolite to march in a Saint Patricks Day parade.

  18. Yep, it’s another case of freedom from vs freedom of, alright. They’re hoping that with enough of these cases, one day atheism will become the law of the land.

    And then we WILL get arrested for “waste time and tax dollars”, just like Tom Miller below wants.

  19. Such passing mention would seem likely to fall well within the “mere ceremonial deism” scope; or in James Madison’s Latin, either under “de minimis non curat lex” or “cum maculis quas aut incuria fudit, aut humana parum cavit natura”.

    Of course, if religious fundamentalists start pointing to it as evidence of how “America is a Christian nation”, that would seem to undermine the “mere ceremonial” aspect.

  20. The most similar ruling in question is from Marsh v Chambers; Barry Lynn counts that comparison as the third “herring” in his Washington Post editorial, noting some of the distinctions between prayers in the two cases on points central to why the court thought the Nebraska practice was allowed.

    Of course, it’s not clear whether the SCOTUS justices agree with Lynnon the distinctions; nor whether they think the precedent of MvC too narrow or too broad.

  21. If it is offensive to some for religious people to practice their faith during a town hall meeting, then let them bloody be offended.

  22. So that should apply to every religion and worldview. So atheist town officials can recite a prayer that states that there are no gods, angels, demons, saints, afterlife, etc. and there is no purpose to our lives other than the one we give it. And it is too bad if Christians are offended. The officials have every right to recite it.

  23. You’ve got a point there, Ken. But for the sake of not offending anyone, I think it would be best to just get on with the meeting. Those who believe they need divine guidance should meet privately to pray. Of course, those who don’t believe can always take the high road and not make a big deal about it. They always have that option.

  24. Imagine if you were a citizen in a community that was primarily Muslim, and you attended a city council meeting to present a concern or petition. In addition to the city council, there are many community members present for various reasons.

    Imagine that every meeting started with an Imam leading a prayer to Allah, praising his virtues and asking for his blessings and asking that everyone in the room be guided as Allah had guided his prophet Mohammed, and some of the prayer is spoken in Arabic.

    Imagine that all the Muslims present rise for the prayer and hold their hands out, palms up, or that they kneel for the prayer, including every member of the city council. Imagine that this happens every meeting, month after month, year in and year out (except a few times, but only for a short while after a lawsuit has been filed).

    But you are one of a minority of Christians in the community. All the people on the city council notice that you don’t rise or kneel for the prayer, as do the other present members of the community. Perhaps you even leave the room!

    How would you feel presenting your concern or petition to the city council? Would you believe that it would really receive equal, impartial consideration?

  25. But the city hall is government property. And the city council meeting is a government function wherein the members are conducting government business in public. Having prayers — especially essentially always very Christian prayers (by the blood of Jesus, etc.) led by a minister — favors the Christian religion over all other religions. Government is not supposed to do that.

  26. Ken, according to the Fox News article, the only time Greece had non-Christians lead prayer was in 2008. After receiving a complaint from several residents, the city council had prayers from non-Christians at 4 of 12 meetings. Otherwise, it has been all Christian from 1999 to 2010, which is when the residents filed suit.

  27. Yes, Ken. I think this case, as with some of the other current church-state controversies reflect a loss of tolerance in our society. A bit of commonsense and respect for one another would go a long way to avoiding such problems.