That decision, it was said, created a new constitutional standard: Is government “endorsing” a particular religion? Ten lawsuits challenging invocations at meetings of local school boards and city or county councils were filed in federal courts since 2004.
The case that has now reached the Supreme Court concerns the town of Greece, just outside Rochester, New York. Beginning in 1999, monthly meetings of the town board started with a prayer recited by someone invited by the town. All the prayer-givers before 2008 were Christian. After hearing complaints about this seemingly exclusionary practice, the town invited a Wiccan priestess, the chairman of the local Baha’i congregation, and a “Jewish layperson” to deliver prayers in 2008. But in 2009 and 2010, the town resumed the practice of inviting only Christians.
A federal court of appeals decided that the record of prayers between 1999 and 2010 was an unconstitutional “endorsement” of Christianity. It noted that “a substantial majority of the prayers in the record contained uniquely Christian language” and that the process for selecting prayer-givers “virtually ensured a Christian viewpoint.” The result, said a very respected non-Jewish appellate court judge, “identified the town with Christianity in violation of the Establishment Clause.”
The town’s request that the Supreme Court review and reverse the decision was supported by a friend-of-the-court brief submitted by eighteen states and another friend-of-the-court brief submitted by forty-nine members of Congress. Each of the briefs noted that the appellate court decision effectively cast doubt on legislative prayers in state legislatures and in the Senate and House of Representatives. If, they said, the kind of detailed analysis of the identity of prayer-givers and the content of prayers were applied to their invocations, courts might invalidate their practices.
American Jewish organizations will probably address this case with friend-of-the-court briefs opposing legislative prayer, as they did in 1983. America’s Jews have a long and consistent record of challenging any governmental action that appears to favor Christianity, is even slightly sectarian, or endorses religion in any manner.
Jewish participation in the ritual of legislative prayer has, however, become common and conventional, and the “Judeo-Christian heritage” is now part of American culture. Astounding as it might seem, the Orthodox Jewish community would probably benefit more from support of legislative prayer and opposition to an expansive interpretation of the Establishment Clause (even if the prayers in an individual case are overwhelmingly Christian) than by hewing to a Jewish party line hallowed by past briefs of secular Jewish organizations.