“Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way,” Justice Elena Kagan lamented from the bench last week. “And every time the Court gets involved in things like this, it seems to make the problem worse rather than better.”
Kagan seemed to be speaking for most of her colleagues as the Court grappled with the issue of whether a Town Council can subject those attending its annual meetings to prayer—almost always explicitly Christian—by selected area clergy. It was the Court’s latest foray into the question of when government can allow, or mandate, official prayer at public events or in public institutions. The Justices seemed weary of the issue and close to despair.
This is a tale of two courts: on the one hand, a chastened, hesitant court confronting, in a case called Town of Greece v. Galloway, an issue it has been stuck with for half a century, and on the other, a bold, almost playful court, in Bond v. United States, preparing to inject its authority into a place it has previously stayed clear of.
The public-prayer question has bedeviled the Court since 1962, when the justices first invalidated a state-composed school prayer mandated by New York State. Ever since that decision, the Court has had to parse when prayer is okay and when it isn’t: If not in class, what about before high school football games? At graduation? Can a state legislature hold prayers before its sessions? Can a county board post the Ten Commandments in its courthouse? Can a state put a stone monument of the Ten Commandments on its capitol grounds? What about a Town Council (the issue in Town of Greece)? Should the government instruct clergy on “nonsectarian prayer,” whatever that might be? Would it be better if the prayers didn’t mention Jesus Christ? Would it be okay for them to mention the “Heavenly Father” or “God Almighty,” as long as they don’t mention “Jesus” or “Christ”? What about “Allah,” if there’s no mention of “Muhammad”?