In a surprise move, President Barack Obama's administration has filed a brief in the U.S. Supreme Court backing the constitutionality of clergy-led prayers before municipal meetings.
However, the administration's brief in a case involving a town council in New York State does not make clear whether it would take the same position regarding prayers at public school board meetings. Some federal appeals courts have distinguished school boards from other municipal governments when it comes to the constitutionality of prayers on the theory that students are a regular presence at board meetings.
In Town of Greece, N.Y. v. Galloway (No. 12-696), the justices will review a federal appeals court ruling that the town violated the First Amendment's prohibition against government establishment of religion by allowing private citizens to open town board meetings with prayers, a practice that has been going on since 1999.
The town contends that it does not steer the citizens' choices in any direction and has had many faiths represented. But those who challenged the practice say the town has relied primarily on Christian ministers, who often have elaborated on tenets of Christianity and celebrated the birth and resurrection of Jesus Christ.
The friend-of-the-court-brief filed early this month by U.S. Solicitor General Donald B. Verrilli Jr. contends that the U.S. Court of Appeals for the 2nd Circuit, in New York City, misapplied a key Supreme Court precedent on legislative prayer when it ruled against the town's practice.
In its 1983 decision in Marsh v. Chambers, the Supreme Court upheld a state legislature's practice of opening its session with prayers by a chaplain, based the nation's long history of such prayers in the Continental Congress and the U.S. Congress. The justices said that legislative prayer that is not meant to proselytize, to disparage any religion, or to advance any one faith or belief does not violate the establishment clause.
"Marsh neither requires nor permits a court to parse the sectarian content of prayers offered at the opening of the session of a legislative body," the Obama administration brief says.
The brief could be interpreted as providing support for counting school boards the same as town councils and other municipal bodies. It says the Marsh decision "governs legislative prayer practice" and was the right one to apply to town council prayers at issue in the Greece case.
The administration also distinguished Lee v. Weisman, the 1993 Supreme Court decision that struck down clergy-led prayers at a middle school graduation ceremony, with the court holding that such prayers had a coercive effect on students who had little choice but to attend their graduation.
"The circumstances of Lee differ from those in this case, for here the offering of a prayer serves to solemnize and invoke Divine guidance for the legislative body's own deliberations," Verrilli says in the administration brief.
Two federal appeals courts that have specifically weighed prayers at school board meetings have taken the opposite view—that Lee applies more than Marsh.
In a 1999 decision in Coles v. Cleveland Board of Education, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that prayers before a school board meeting should be prohibited under Lee because the meetings are an integral part of the school system, and students are regular participants in them.
"These meetings are conducted on school property by school officials, and are attended by students who actively and regularly participate in the discussions of school-related matters," the 6th Circuit court said. "This reality supports our conclusion that the logic behind the school-prayer line of cases is more applicable to the school board's meetings than is the logic behind the legislative-prayer exception in Marsh."
In a 2011 decision in Doe v. Indian River School District, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, also concluded that school board meetings are more like other school events than like legislative sessions.
The upshot of all this is that the Supreme Court's handling of the Town of Greece case may not resolve whether prayers before school board meetings are constitutional, unless the court comes out with a fairly sweeping decision.