FFRF files SCOTUS amicus against government prayer

The Freedom From Religion Foundation, a national state/church watchdog representing nearly 20,000 nonreligious members, has asked the U.S. Supreme Court to declare city council prayers unconstitutional.

FFRF’s friend of the court brief was filed Sept. 23. The court is holding oral arguments in November over a closely watched case out of Greece, N.Y. 

The town began scheduling prayers to open meetings in 1999. Only a handful of non-Christian officiants have been invited to give prayers, and two-thirds of the prayers have been sectarian Christian (referring to Jesus).

A challenge of the practice was brought by Americans United for Separation of Church and State, representing two local residents — a nonreligious woman, Linda Stephens, who is an FFRF member, and Susan Galloway, who is Jewish. They 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.

The town, with help of a well-heeled theocratic legal group, Alliance Defending Freedom, appealed the ruling to the Supreme Court. The fact that the court decided to take the appeal of a decision halting sectarian prayers is seen as potentially ominous. Justice Anthony Kennedy, as usual, is viewed as the swing vote. 

FFRF notes in its strong 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, in nearly every state, to protest government prayers on behalf of its members who feel excluded as citizens.

In its brief, FFRF asks the court to overturn its misguided 1983 decision, Marsh v. Chambers, which “blessed” nonsectarian prayer. FFRF noted that Marsh 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 labeled Marsh an “outlier.” The decision, by relying on “tradition” rather than principle, does not comport with other court decisions interpreting the meaning of the Establishment Clause of the First Amendment, such as a string of solid decisions against imposition of prayer and indoctrination in public schools.

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 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,” the brief states.

Marsh’s recitation of history is unsound,” FFRF writes. “It missed significant facts and distorted others. It relied on congressional chaplaincies but overlooked the divisiveness that office engendered. It relied on the first Congress’s approval of chaplaincies to discern the framers’ intent but ignored the framers’ legal opinions against government prayer.

“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 further told the court, “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.” 

The brief cites statistics showing that a fifth of today’s population is not religious, making government prayer highly exclusionary.

FFRF also worked into the Supreme Court record a correction of a factual assumption by Justice Stephen Breyer cited in the Van Orden case. Breyer was the swing vote in a decision that ruled a Ten Commandments monument at the Texas Capitol was constitutional.

Breyer had ruled in a similar case that the decalogue could not be posted inside a courthouse. He partly based his change of heart in Van Orden on the supposed fact that no one had ever complained about the monument in Texas. Documentation of complaints by FFRF and others was submitted in the brief.

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.


Read the entire brief at:

(Scroll to the Sept. 26 news release. A PDF of the brief is linked at end.)

Freedom From Religion Foundation