The Supreme Court began the day’s session with its traditional opening, “God save the United States and this honorable court.” The irony of the high court hearing a public prayer complaint after its own mention of God was not lost on the justices.
Atheists sued the town of Greece, N.Y. for its practice of opening its town council meetings with mostly Christian prayers, and asking everyone to rise for those prayers. A federal appeals court sided with the plaintiffs, who insisted that any prayers said at council meetings must be nondenominational and inclusive, and the town then appealed to the Supreme Court.
Justice Antonin Scalia asked Thomas Hungar, who argued for the town of Greece, if he objected to the way the Supreme Court opens its sessions.
“But you -- but you – you had no problem, Mr. Hungar, with the marshal's announcement at the -- at the beginning of this session. ‘God save the United States and this honorable court,’” Scalia said. “There -- there are many people who don't believe in God.”
“That's correct, Your Honor,” Hungar said. “And clearly … “
“So that's okay?” Scalia said.
“Yes,” said Hungar. He argued that invoking divine guidance at legislative meetings has always been constitutional.
Douglas Laycock, the atheists’ attorney, later told the justices that his clients are not saying the town of Greece can’t “invoke the deity or have a prayer, and they can certainly pray any way they want silently or just before the meeting. We’ve said they cannot impose sectarian prayer on the citizenry, and that is very different from what Congress does, it is very different from what this Court does.”
Justice Breyer told Laycock that in his opinion, "A major purpose of the religion clauses is to allow people in this country of different religion, including those of no religion, to live harmoniously together."
Breyer raised four possible solutions: No prayer at all, "but that is not our tradition," he said.
Breyer said a second possibility would be to try to keep prayer nondenominational and “as inoffensive to the others as possible." The downside of that approach, he said, is the large number of religious groups who would complain, 'No, that doesn't work for us.’"
The third possibility, Breyer said, is to say no prayer if there's any coercion: "But we just saw people walking into this room -- 'God save the United States' -- and you want to win your case. I didn't see people sitting down," Breyer said, indicating there was no coercion.
Breyer said the fourth approach is to be inclusive -- give every religious group a chance to say a prayer on a rotating basis.
"The Founders knew what it meant to have a state church and legislative prayer doesn't come close,” said Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty, which filed an amicus brief in support of the respondents in the case.
He spoke to reporters outside the court.
“The Founders had been colonists in an empire with an established church and most of the colonies also had established churches. Legislative prayer wasn’t what they banned when they said there would be no official state church,” Rassbach said, adding he was hopeful the court would rule in such a way as to protect Americans’ religious liberty.
"As was apparent at today’s argument, the Court has a great opportunity in this case to call a truce in the culture wars by putting Establishment Clause law on a firmer footing,” Rassbach said. “Let's hope it takes that opportunity."
The announcement made at the opening of each court session is: "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"