Washington — When the U.S. Supreme Court talks about religion, all hell breaks loose.
A dispute over an upstate New York town’s prayer before council meetings produced an unusually testy oral-argument session on Wednesday that recalled the decades of difficulty Supreme Court justices have had drawing the line between church and state.
Court decisions involving freedom of religion tend to be closely decided with many separate opinions rather than clear-cut majority statements. The case of Town of Greece v. Galloway appears to be headed that way.
In the case brought by two Greece residents who objected to the overwhelmingly Christian prayers at meetings, the justices appeared likely to allow legislative prayer to continue but not ready to offer new guidance for when government might have gone too far in favoring, for example, Christianity over other faiths. The more liberal of the nine justices appeared sympathetic to the challenge while the conservatives who control the court’s majority seemed ready to back the town - but not with a single obvious rationale.
At one point during the hourlong session, Justice Stephen Breyer referred to the challenge of setting constitutional rules so people of different religions live “harmoniously together.” Not soon after, Justice Elena Kagan asserted that, “Every time the court gets involved in things like this, it seems to make the problem worse rather than better.”
Overall, the justices’ remarks were more pessimistic than positive regarding a possible consensus. They voiced frustration with the lawyers who appeared before them and with each other as well.
When Breyer asked the town’s lawyer if officials could take more steps to invite non-Christians and even people who are not religious to offer the equivalent of a prayer, Justice Antonin Scalia mockingly asked what sort of invocation “somebody who is not religious” could offer. As lawyer Thomas Hungar, representing the town of Greece, began to suggest a chant “of guidance and wisdom,” Breyer interjected with some annoyance toward Scalia, “Perhaps he’s asking me that question and I can answer it later.”
Such have been the tensions over one of America’s most enduring dilemmas. The U.S. Constitution guarantees the free exercise of religion while requiring the separation of church and state. Neither dictate is absolute and the court has struggled with religious protections, often leaving lower courts with confusing standards, particularly on the mandate at issue on Wednesday - that government “make no law respecting an establishment of religion.”