The justices have struggled for decades to come up with a coherent set of rules for prayers conducted at government forums. Past decisions have allowed public bodies, including Congress, state legislatures and city councils, to open their meetings with prayers, but the justices have also ruled that public officials may not take actions that appear to endorse a specific set of religious beliefs.
In Wednesday's oral arguments, the justices considered a dispute over the primarily Christian prayers recited before meetings of the Town Board in Greece, N.Y., near Rochester. Two residents, Susan Galloway, who is Jewish, and Linda Stephens, an atheist, said that being required to sit through Christian prayers in order to attend the meetings violated their First Amendment rights to religious freedom. Their lawyer asked the court to require the town to use prayers that did not specifically endorse Christian beliefs or include direct references to Jesus Christ.
But the justices, perhaps mindful of the storm created by their ban on prayers in public schools in the 1960s, appeared wary of having government regulate what a minister can say, even at a public meeting.
"I think it's hard because the court lays down these rules and everybody thinks that the court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways," Justice Elena Kagan said. But she said that "part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the court gets involved in something like this, it seems to make the problem worse rather than better."
Douglas Laycock, the lawyer for the two women, asked the court to compel the town's officials to establish guidelines to require ministers invited to their meetings to use prayers that are nonsectarian and do not call for the participation of the public.
Thomas Hungar, the lawyer for the town, asserted that Greece's prayers were in line with those in the country's historical tradition, something the court had cited in Marsh vs. Chambers, a 1983 decision approving prayers recited before the state Legislature in Nebraska.
Although Laycock argued that Greece's prayers coerced people who had business before the town to participate, Hungar said the audience was free to ignore them. Hungar's position was backed by a lawyer for the Obama administration.
"What troubles me about this case," Kagan said, "is that here a citizen is going to a local community board . and is immediately being asked, being forced to identify whether she believes in the things that most of the people in the room believe in, and it strikes me that this might be inconsistent with this understanding that when we relate to our government, we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers."
Justice Antonin Scalia looked at the issue from a different perspective.
"There is a serious religious interest on the other side of this thing that people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens . and it seems to me that when they do that, so long as all groups are allowed to be in, it seems to me an imposition upon them to stifle the manner in which they invoke their deity."
Justice Anthony Kennedy, who as a swing vote on the court will most likely have to be one of the architects of any new approach, seemed uncomfortable with the positions of both sides.
He said he was "very concerned" that establishing guidelines for prayers as Laycock was advocating would "involve the state very heavily in the censorship and approval of prayers." But he also expressed concern about Hungar's historical approach, even though that was the basis for the court ruling in the Nebraska case 30 years ago.
The justices will vote in secret on the case this week and announce a decision by June.
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