State-sponsored prayers in public schools have been banned for more than 50 years. But the latest Supreme Court ruling suggests the parameters of the practice remain murky outside the classroom.
The highest court of the land ruled Monday in favor of an upstate New York town, which had been sued by two residents—one Jewish, another atheist—for opening its monthly meetings with a prayer. The ceremonial remarks, the complainants said, were almost always Christian, and at times explicitly sectarian, which led the pair to feel "excluded and disrespected."
The Court didn't agree. "Offense, however, does not equate to coercion," said Justice Anthony M. Kennedy, who wrote the majority opinion.
"The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers," Kennedy wrote. Coercion is unconstitutional under the establishment clause of the First Amendment. In this case, the Court found the practice of offering prayers before government hearings in keeping with a centuries-old tradition that exists in Congress and state legislatures.
So, school-sponsored prayer, not OK. Town-hall-sponsored prayer, acceptable. But when does group prayer in a public setting become coercion?
"To the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the 'subtle coercive pressures' allegedly felt by respondents in this case," Justice Clarence Thomas wrote, who concurred in part with the decision. "I would simply add, in light of the foregoing history of the Establishment Clause, that 'peer pressure, unpleasant as it may be, is not coercion' either."
The line appears to lie somewhere along a spectrum between "subtle" and "actual." In other words, it all comes down to context. And context is highly subjective, and decisions about whether it's right or wrong have historically been made on a case-by-case basis.
In 1985, the Supreme Court struck down an Alabama law that permitted a one-minute prayer during school. In 1992, it deemed prayer to be coercive during high school graduation ceremonies. And in 2000, it banned school-organized, student-led prayer at high school football games.
Prayer policy gets trickier at the local and state level. In September, the city of Liberal in Kansas voted unanimously to allow student-led prayer over the school's loudspeaker and over microphones on the football field, a move that some town officials said was just asking for a lawsuit. That same month, the speaker of Florida's House caused friction within the school board when he declared that public high school football coaches should be allowed to pray with their teams. In February, an Arizona school board reinstated pre-meeting prayer, but not without controversy. And as recently as Monday, an Oklahoma public school banned coach-led prayers at baseball games, after officials had received reports that the practice had been resurrected.
In her dissent, Justice Elena Kagan weighed in on the murky issue of when and where public prayer is acceptable. She upheld the long-standing tradition of opening congressional and state legislative meetings with prayer, but gave several hypothetical scenarios in which the practice would cross a constitutional line in her view. Here's one:
It's election day, and you head over to your local polling place to vote. As you and others wait to give your names and receive your ballots, an election official asks everyone there to join him in prayer. He says: "We pray this [day] for the guidance of the Holy Spirit as [we vote]... Let's just say the Our Father together. 'Our Father, who art in Heaven, hallowed by thy name; thy Kingdom come, thy will be done, on earth as it is in Heaven...' " And after he concludes, he makes the sign of the cross, and appears to wait expectantly for you and the other prospective voters to do so too.
This example, Kagan said, would likely be deemed unconstitutional, because sectarian prayer would infuse governmental activities whose participants are almost all civilians, not federal employees. That rationale, she wrote, is why the New York town should have lost Monday's case:
When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose.
What's different, Kagan writes, about a town meeting?