“Protestants were more than 98 percent of the white population when the First Amendment was adopted,” writes law professor Douglas Laycock in a blog post lamenting the Supreme Court’s 5-4 decision in Town of Greece, NY v. Galloway. “If a religious practice was controversial among Protestants, they wanted government to stay out of it. If it was not controversial among Protestants, there was no one to raise the issue.”
Though the nation’s religious landscape today bears little resemblance to that of 1789, the Court’s conservative majority perceived the thorny issue of municipal governments routinely opening public meetings with Christian prayers through 18th century bifocals. Or so argued Laycock–in a brief interview I conducted with him via email and on the floor of the highest court of the land, where he represented those who’d taken issue with the town board’s Protestant flavor. “The majority was in deep denial about the religious purpose of these prayers, their divisiveness, and their coercive effect on religious minorities,” he told me.
So what does this decision mean for local school boards? Can school boards start dispensing hymnals? “Unfortunately, it’s not that clear,” said Sarah Orman, a staff attorney at the Texas Association of School Boards. “We won’t know for sure that the U.S. Supreme Court would approve of school board prayer until there is a case that specifically addresses prayer at school board meetings.
Said Laycock, the University of Virginia’s Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies, “Two courts of appeals have held that school board meetings are more like school than like a legislature.” This is partly because students are frequently present at the start of School Board meetings.
“The primary opinion of the Court in Town of Greece mentioned multiple times that the audience in the town consisted of adults, who could presumably discern the purpose of the prayer and who understood that participation in the prayer was not compulsory,” said Orman. “Since students are regularly present at school board meetings, a court might view the circumstances of religious prayer at a meeting as more coercive, especially if the students’ attendance at the meeting is required.”
According to Laycock, the Court ignored the fact that students regularly observed the Town Board meetings for academic credit.
Additionally, the town asserted that anyone was free to volunteer to give the prayer, indiscriminate of religious persuasion. “The Court took that seriously, and seemed to require it,” said Laycock. Since school board prayers are typically given by a member of the board, lack of religious diversity among members could rapidly land a board in hot water.
“It’s safe to say that if a district routinely opens its school board meetings with a prayer, it should have a nondiscriminatory policy for who delivers the prayer,” said Orman.
Coming up often throughout the arguing of this case was the Court’s precedent-setting decision in Marsh v. Chambers, in which the Nebraska state legislature’s practice of opening sessions with nonsectarian prayer was upheld. What most surprised Joy Baskin, the Director of Legal Services at TASB, about the ruling in Town of Greece was its “easy dismissal” of that requirement: “The Court observed, I think correctly, that given the diversity of beliefs among potential observers, the fact that a prayer is ‘nonsectarian’ is a weak justification for conducting prayer at a public meeting. The Court found it more significant that the town board had not been discriminating in the selection of the clergy–the Court did not use the language of forum analysis, but borrowed the concept of viewpoint neutrality in its reasoning, finding neutrality in the selection of the speakers as opposed to the content of the prayers.”
There’s much more to mine from this landmark decision. Find some of it in the June issue of Texas School Administrators’ Legal Digest.
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