An American flag flies in front of the Supreme Court in Washington June 27,… (Alex Brandon/AP )
The Supreme Court said Monday that it will review whether a New York town council that starts most of its meetings with a Christian prayer violates the separation of church and state.
The court decided 30 years ago, in a case involving the Nebraska legislature, that legislative meetings that open with a prayer do not violate the First Amendment’s prohibition of government-established religion as long as they do not advance a single faith.
But a unanimous panel of the U.S. Court of Appeals for the 2nd Circuit found that the Town Board of Greece, N.Y., did just that. Over the course of a decade, Circuit Judge Guido Calabresi wrote, town employees almost exclusively recruited Christian chaplains to deliver remarks. The Supreme Court will consider the decision during its term that will begin in October.
About two-thirds of the prayers “contained references to ‘Jesus Christ,’ ‘Jesus,’ ‘Your Son,’ or the ‘Holy Spirit.,’ ” Calabresi wrote. “Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ’s name.”
The bottom line, Calabresi wrote, was that “an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity.”
The religious legal organization Alliance Defending Freedom represented the town of Greece — a community of about 100,000 residents near Rochester — in challenging the appeals court decision.
“Americans today should be as free as the Founders were to pray,” senior counsel David Cortman said in a statement. “The Founders prayed while drafting our Constitution’s Bill of Rights, and the Supreme Court has ruled that public prayer is part of the ‘history and tradition of this country.’ ”
The town’s prayer practices were challenged by two residents, Susan Galloway and Linda Stephens, who were aided by the group Americans United for the Separation of Church and State.
After the two threatened legal action in 2008, the appeals court said, the town added to its list of chaplains a Baha’i congregation leader, a lay Jewish man and a Wiccan priestess.
The priestess “invoked Athena and Apollo; she stated these were fitting deities given the town’s name,” Calabresi wrote. That was not enough to “overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion,” he added.
The Rev. Barry W. Lynn, executive director of American United, said the court should reaffirm “government neutrality” on religion.
“A town council meeting isn’t a church service, and it shouldn’t seem like one,” Lynn said in a statement.
The case is Greece v. Galloway.
The question of how much deference courts owe to federal regulatory agencies split the Supreme Court’s conservative members Monday.
Justice Antonin Scalia and Chief Justice John G. Roberts Jr. wrote dueling opinions on whether, when federal law is unclear, courts must defer to an agency’s decision about the scope of its authority, or “jurisdiction.”
In a famous 1984 case called Chevron v. National Resources Defense Council, the court ruled that when Congress left ambiguity in a law, it intended that the question would be resolved by the agency, rather than courts. Scalia said that settles the question.
“Judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional,’ ” Scalia wrote.
“Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.”
He was joined by an unusual coalition of Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Justice Stephen G. Breyer agreed with the outcome and part of Scalia’s opinion.
Roberts wrote a biting dissent that was joined by Justices Anthony M. Kennedy and Samuel A. Alito Jr. Roberts said the court was giving too much authority to a bureaucracy more vast than the framers could have imagined when they designed a government of divided powers.
“And with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might also understandably question whether presidential oversight — a critical part of the Constitutional plan — is always an effective safeguard against agency overreaching,” Roberts wrote.
He said that before courts grant deference to agency decisions, they must decide whether Congress has given the agency “lawmaking power over the ambiguity at issue.”
In the case before the court, the decision meant a loss for the Texas cities of Arlington and San Antonio. They had challenged rules from the Federal Communications Commission about the speed with which local governments must consider plans to build or expand cellphone towers.
The case is City of Arlington v. Federal Communications Commission.
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