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Retired Justice Sandra Day O’Connor, often a deciding vote on religion during her 1981-2006 tenure, attended the session in the ornate courtroom. She sat, expressionless, in a front-row spectator seat.
The religious makeup of the bench has changed since O’Connor’s time. The court has historically been dominated by Protestants but it is now has six Catholic and three Jewish justices. The religious character of the justices, however, is unlikely to control their views. Among the Catholics, for example, are Scalia, a conservative who has voted repeatedly for prayer in public settings, and Sonia Sotomayor, a liberal who seemed more supportive of those challenging the prayer policy in Greece, a suburb of Rochester.
The high court heard the case after the U.S. Court of Appeals for the 2nd Circuit ruled that Greece officials relied on overwhelmingly Christian clergy, appearing to endorse their beliefs. The court noted that prayers at the town’s legislative sessions regularly mentioned Jesus Christ and the Holy Spirit. The appeals court differentiated the Greece dispute from a 1983 Supreme Court case allowing non-sectarian prayers in the Nebraska legislature. In that decision, Marsh v. Chambers, the justices relied on the historic nature of legislative prayer.
In key Supreme Court cases since 1983, the justices have focused on whether government might be endorsing a particular religion or coercing people to participate in prayer. In a 1989 case, they rejected a Pennsylvania county’s courthouse crèche display and in 1992 they struck down a Rhode Island public school district’s prayer at graduations.
In Greece’s appeal, Hungar urged the justices to consider America’s history of legislative prayer dating to its 18th century founding. The Obama administration filed a brief in support of the town.
“KEEPING GOVERNMENT NEUTRAL”
Douglas Laycock, a lawyer representing town resident Susan Galloway and other challengers to the Greece prayer sessions, countered that the town’s practice “coerces” people who attend meetings to join Christian invocations. Laycock said he was not arguing against non-denominational, inclusive prayer.
“Give me an example of a prayer that would be acceptable to Christians, Jews, Muslims, Buddhists, Hindus,” Justice Samuel Alito insisted. As Laycock hesitated, Alito kept repeating, “Give me an example. … Give me an example.”
Chief Justice John Roberts also was skeptical of Laycock’s rationale. “What exactly is coercive in this environment?” he asked. “Having to sit and listen to the prayer?”
To sharp questioning by Justice Anthony Kennedy, who has succeeded O’Connor as a pivotal vote among the nine, Laycock insisted the court could write a rule that would ensure legislative prayers were not exclusively Christian but that did not require excessive screening of prayers by officials.
Laycock disagreed with Kagan’s remark that the court seems to be making the law worse rather than better.
“I don’t think that’s true,” Laycock said. “There are people who distort your decisions. There are people who misunderstand your decisions honestly … But keeping government neutral as between religions has not been a controversial proposition in this court.”