TWO VIEWS
“Willing participation in civic affairs can be consistent with a brief acknowledgment of … belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.”
“€œNo one can fairly read the prayers from Greece’€™s town meetings as anything other than explicitly Christian — constantly and exclusively so,.”
OTHER ACTION
The Supreme Court on Monday:
• Let stand New Jersey’s requirement that gun owners demonstrate a justifiable need in order to carry firearms in public. Several residents claimed the law was unconstitutional, but in refusing to take their case, the high court left in a place a ruling last fall from the 3rd U.S. Circuit Court of Appeals. It upheld New Jersey’s requirement that gun owners demonstrate “specific threats or previous attacks demonstrating a special danger to applicant’s life that cannot be avoided by other means.”
• Reinstated a lawsuit filed by a former major league baseball player’s son who was shot on the porch of his family home by a Houston-area police officer. The justices ordered the 5th U.S. Circuit Court of Appeals to reconsider the case of Robert Tolan, son of former major leaguer Bobby Tolan. The younger Tolan was shot on New Year’s Eve 2008 outside his parents’ home in the Houston suburb of Bellaire. Police mistakenly believed he was armed and had stolen a vehicle. He and his family filed a lawsuit against a Bellaire police officer and city officials, alleging unconstitutional excessive force was used when the unarmed Tolan was shot. The suit also accused Bellaire and police of a racial profiling, false arrests and racial harassment.
• Said it will consider a dispute over what kind of explanation local officials must provide when denying an application to build a cell phone tower. The appeal from T-Mobile South, claims the Georgia city of Roswell did not adequately justify its refusal to allow construction of a 108-foot tall cell tower. Federal law requires denial of a cell phone tower permit to be “in writing” and supported by substantial evidence. The 11th U.S. Circuit Court of Appeals held that Roswell satisfied that requirement by issuing a general denial letter and a transcript of hearings, but T-Mobile contends the written decision must include the specific reason for denial.
• Rejected a challenge to a Nebraska city ordinance that bans renting homes to immigrants living in the country illegally. The justices let stand an appeals court ruling that found the ordinance neither discriminates against Latinos nor interferes with federal immigration laws. The case challenged a 2010 ordinance approved by Fremont, Neb., voters requiring potential renters to pay a $5 fee for an occupancy license and show proof of being in the country legally. Earlier this year, the justices declined attempts by two other towns — in Pennsylvania and Texas — to revive similar laws that had been struck down by lower courts. The high court has held since 2012 that immigration issues are largely a matter for federal agencies, not local governments, to regulate.
• Clarified how restitution must be computed in mortgage fraud cases. The justices in a unanimous decision said restitution to a bank that has been defrauded must be calculated based on the value of property when it is actually sold, and not the earlier date on which the bank forecloses on the property. The case involved a fraudulent loan application for the purchase of two houses in Wisconsin for $470,000. The two banks foreclosed on the mortgages in 2006, but only sold the homes later for $280,000 after the real estate market collapsed.
— Associated Press
A divided Supreme Court upheld decidedly Christian prayers at the start of local council meetings on Monday, declaring them in line with long national traditions though the country has grown more religiously diverse.
The content of the prayers is not significant as long as they do not denigrate non-Christians or try to win converts, the court said in a 5-4 decision backed by its conservative majority.
Though the decision split the court along ideological lines, the Obama administration backed the winning side, the town of Greece, N.Y.
The outcome relied heavily on a 1983 decision in which the court upheld an opening prayer in the Nebraska Legislature and said prayer is part of the nation’s fabric, not a violation of the First Amendment’s guarantee of freedom of religion.
Writing for the court Monday, Justice Anthony Kennedy said forcing clergy to scrub the prayers of references to Jesus Christ and other religious figures would turn officials into censors. Instead, Kennedy said, the prayers should be seen as ceremonial and in keeping with the nation’s traditions.
“The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent, rather than to exclude or coerce nonbelievers,” Kennedy said.
Justice Elena Kagan, writing for the court’s four liberal justices, said, “I respectfully dissent from the court’s opinion because I think the Town of Greece’s prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”
Kagan said the case differs significantly from the 1983 decision because “Greece’s town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content.”
Kennedy himself was the author of an opinion in 1992 that held a Christian prayer delivered at a high school graduation violated the Constitution. He said in Monday’s decision that there are differences between the two situations, including the age of the audience and the fact that attendees at the council meeting may step out of the room if they do not like the prayer.
In her dissent, Kagan said the council meeting prayers are unlike those said to open sessions of Congress and state legislatures, where the elected officials are the intended audience. In Greece, “the prayers there are directed squarely at the citizens,” she said.
Kagan also noted what she described as the meetings’ intimate setting, with 10 or so people sitting in front of the town’s elected and top appointed officials. Children and teenagers are likely to be present, she said.
Senior counsel David Cortman of the Alliance Defending Freedom, which represented the town, applauded the court for affirming “that Americans are free to pray.”
Ayesha Khan, legal director for Americans United for Separation of Church and State, said the court disregarded the interests of religious minorities and nonbelievers. But Khan said she saw a “silver lining” in the outcome because the court rejected a more sweeping ruling that would have made it even harder to prove a violation of the Constitution.
A federal appeals court in New York had ruled that Greece violated the Constitution by opening nearly every meeting over an 11-year span with prayers that focused on Christianity.
In 2008, after residents Susan Galloway and Linda Stephens complained, four of 12 meetings were opened by non-Christians, including a Jewish layman, a Wiccan priestess and the chairman of the local Baha’i congregation. Galloway and Stephens are described in their court filings as a Jew and an atheist.
A town employee each month selected clerics or lay people by using a local published guide of churches. The guide did not include non-Christian denominations. The appeals court found that religious institutions in the town of just under 100,000 people are primarily Christian, and even Galloway and Stephens testified they knew of no non-Christian places of worship there.
They filed suit and a trial court ruled in the town’s favor, finding that the town did not intentionally exclude non-Christians. It also said that the content of the prayer was not an issue because there was no desire to proselytize or demean other faiths, though the prayers sometimes included pointedly sectarian messages, such as one that declared “we acknowledge the saving sacrifice of Jesus Christ on the cross.”
But a three-judge panel of the 2nd U.S. Circuit Court of Appeals said that even with the high court’s 1983 ruling, the practice of having one Christian prayer after another amounted to the town’s endorsement of Christianity.
Kennedy, however, said judges should not be involved in evaluating the content of prayer because that could lead to legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.”
He added, “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.”
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