At the Supreme Court on Wednesday, the justices heard arguments for a case styled Town of Greece v. Galloway, in which a very basic question provoked long, long, and imperfect answers.
JUSTICE SCALIA: What about devil worshippers?
Should the town of Greece, located in the tundra outside of Rochester, N.Y., be allowed to start a monthly meeting with a prayer? The plaintiffs say the Christian overtones of the monthly invocation make them uncomfortable, and argue that it constitutes a government endorsement of Christianity.
In 1983, the Court determined in Marsh v. Chambers that the state of Nebraska could start legislative proceedings with a prayer, but, as SCOTUSblog explains it, the exact cutoff as to when prayer becomes state-endorsed religion has never been drawn, aside from a vague restriction on not proselytizing or denouncing outright another religion.
As part of the oral argument Wednesday, the justices wondered whether there could possibly be one prayer nondenominational enough to be cool with Christians, and, let’s say, worshippers of Zeus. They were picking apart the argument of Douglas Laycock, a professor of law and religion at the University of Virginia, who said that prayers could be allowed if they were not sectarian.
“Well, if that is your argument, then you are really saying you can never have prayer at a town meeting,” Justice Samuel Alito said. Laycock then tried to defend his position.
The exchange that follows highlights the central problem of the issue: How do you both allow public prayer and be all inclusive? The answer veers into the absurd, dissecting prayers into their least offensive and vaguest components, approving the ones that pass a sniff test, but still implicitly invoke God and therefore will offend someone, somewhere. Justice Antonin Scalia, the staunch Catholic, jumped in wondering whether such a prayer could make devil worshippers happy.
For the record, Lucien Greaves, the communications director of the Satanic Temple, says the answer is no.
“If the question is one of whether or not there can be one public prayer generalized enough to be all-inclusive to every religion, the answer is obviously no,” he wrote me via email.
“The discussion regarding some type of all-inclusive public prayer naively assumes one type of religious construct (that of servitude and supernaturalism) while seemingly disregarding not only other religious conceptions, but the presence of those who don’t wish to associate themselves with any type of religion whatsoever.”
JUSTICE ALITO: All right. Give me an example. Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus. Give me an example of a prayer. Wiccans, Baha’i.
CHIEF JUSTICE ROBERTS: And atheists.
JUSTICE SCALIA: And atheists. Throw in atheists, too.
MR. LAYCOCK: We — we take Marsh to — to imply that atheists cannot get full relief in this context, and the McCreary dissenters said that explicitly. So points on which believers are known to disagree is a — is a set that’s in the American context, the American civil religion, the Judeo-Christian tradition —
JUSTICE ALITO: Give me an example then. I think the point about atheists is a good point. But exclude them for present purposes and give me an example of a prayer that is acceptable to all of the groups that I mentioned.
MR. LAYCOCK: About a third of the prayers in this record, Your Honor, are acceptable.
JUSTICE ALITO: Give me an example.
MR. LAYCOCK: Can I have the joint appendix? The prayers to the almighty, prayers to the creator.
JUSTICE ALITO: To “the almighty.”
MR. LAYCOCK: Yes.
JUSTICE ALITO: So if — if a particular religion believes in more than one god, that’s acceptable to them?
MR. LAYCOCK: Well, some religions that believe in more than one god believe that all their many gods are manifestations of the one god. But the true polytheists I think are also excluded from the McCreary dissent.
JUSTICE SCALIA: What about devil worshippers?
MR. LAYCOCK: Well, if devil worshippers believe the devil is the almighty, they might be OK. But they’re probably out —
CHIEF JUSTICE ROBERTS: Who is going to make this determination?
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