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The concern going into the oral hearing was that the court would substantially expand the definition of permitted prayer in a 1983 case, Marsh v. Chambers. That decision, based on a case related to prayers in the Nebraska Legislature, has been widely interpreted as allowing nonsectarian prayer in legislative bodies.
The Town of Greece is arguing that the ban on prayers should be limited to those that proselytize or defame other faiths. If the Supreme Court agrees, sectarian public prayer would be permitted.
Jewish organizations were heartened that during oral arguments, the lawyer for Galloway and Stephens, Douglas Laycock, moved the court to consider a different issue: Whether a publicly attended town board meeting should be considered as equivalent to a legislature.
In legislature cases, the argument goes, the affected parties — the lawmakers — willingly entered a system with existing rules and traditions that could include prayer. In a town board meeting, the affected parties are ordinary citizens going about their daily business.
“[The Marsh case] is adults elected by their constituents to go into a legislature where there’s a history of prayers being offered at every session,” said Michael Lieberman, the ADL’s Washington counsel. “This is different. The town council is the place where ordinary citizens must go to get a zoning variance or complain about cable service.”
For Galloway, it was a thrill to see Supreme Court Justice Elena Kagan challenge the Town of Greece’s lawyer, Thomas Hungar, by imagining a hypothetical in which the court proceedings had been preceded by the same benediction recited at Greece’s board meetings.
“Suppose that as we began this session of the Court, the chief justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators,” Kagan said. “And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the chief justice then called your case. Would that be permissible?”
“I don’t think so, your honor,” said Hungar, who then attempted to distinguish between legislative prayer and prayer in a courtroom.
Galloway believes that Kagan seized on that account of a Town of Greece prayer opening because she also is Jewish and has faced similar incidents in the course of her career.
“We’ve all had experiences that have been difficult,” Galloway said. “These are things common to Jewish people.”