The Freedom From Religion Foundation, a state/church watchdog representing nearly 20,000 nonreligious members nationwide, is asking the U.S. Supreme Court to declare city council prayers unconstitutional.
FFRF’s friend of the court brief was filed Monday with the high court, which will be holding oral arguments in November over a case out of Greece, N.Y. Since the town began scheduling prayers to open meetings in 1999, only a handful of non-Christian officiates have given prayers, and two-thirds of the prayers have been sectarian Christian (referring to Jesus.)
Americans United for Separation of Church and State, representing two local residents – a nonreligious woman, Linda Stephens, who is a member of FFRF, and Susan Galloway, who is Jewish – won a unanimous appeals court ruling by a three-judge panel of the 2nd Circuit U.S. Court of Appeals in May 2012, declaring the practice unconstitutional. With the help of a well-heeled Religious Right legal group, Alliance Defending Freedom, the town appealed the ruling to the Supreme Court.
FFRF notes in its supporting brief that FFRF was originally formed in 1976 explicitly to stop prayers at the local government level. Government prayer is the second most common complaint FFRF receives. FFRF has written to hundreds of legislative entities about government prayers in nearly every state, on behalf of its members who feel offended and excluded.
FFRF asks the court to overturn its 1983 decision, Marsh v. Chambers, which blessed nonsectarian government prayer. FFRF noted that the Marsh decision relied on flawed historical analysis, excusing Nebraska statehouse prayers as “traditional” because the practice was longstanding, and calling prayers “a tolerable acknowledgment” of widely held beliefs. FFRF called Marsh an “outlier” which does not comport with other court decisions interpreting the meaning of the Establishment Clause of the First Amendment.
“Marsh relied on colonial prayers that were given years before the Constitution and First Amendment were adopted but minimized the fact that the framers did not pray during the Constitutional Convention when composing our godless Constitution,” FFRF’s brief said.
FFRF urged the court to place legal principles over history. Some of the Supreme Court’s most-ill-advised decisions, such as the Dred Scott ruling, have used “tradition” to justify violations of citizens’ constitutional rights: “Sometimes, a long history is simply a longstanding injustice – as this Court’s treatment of anti-miscegenation and discrimination against gay citizens demonstrates.”
“Marsh wrongly subjugates fundamental rights to majority rule. Majority will does not trump rights. This country’s rapidly shifting religious demographics should force this Court to revisit Marsh’s ‘tolerable acknowledgment’ argument,” FFRF told the court.
The brief cites statistics showing that a fifth of today’s population is not religious, making government prayer highly exclusionary.
The brief was submitted on behalf of FFRF by Richard L. Bolton, counsel of record and by FFRF Staff Attorneys Andrew L. Seidel, Patrick C. Elliott, Rebecca S. Markert and Elizabeth Cavell.