Where Is It OK to Pray in America?

The Supreme Court has ruled that prayer at town-hall meetings is acceptable. But what would cross the line?

National Journal
Marina Koren
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Marina Koren
May 6, 2014, 8:54 a.m.

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?

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