[JURIST] US Solicitor General Donald Verrilli, Jr [official website], filed an amicus curiae brief [text, PDF] on Thursday urging the US Supreme Court [official website] to allow prayer at town meetings. The Obama administration is supporting the petitioner in the upcoming case of Town of Greece v. Galloway [SCOTUSblog backgrounder]. The town of Greece has argued that using public, participatory prayers to begin a town hall meeting does not violate the Establishment Clause of the First Amendment [text]. The Obama administration distinguished their argument in support of the town by pushing the court to consider the history of public prayers to open federal congressional sessions. Using that tradition as a framework, it argues that government can encourage public meetings to seek “divine guidance” and “solemnity” in public affairs by inviting a spiritual leader to open the public session in prayer. Relying on the endorsement test, however, the solicitor general argued that once the prayer is opened, the personal contributions of public officials may not direct the prayer in a way that would associate official government entities with creation of a public forum for religion, especially not one that is associated with a specific religion. As for censoring the content of those individuals’ personal prayers, the solicitor general argued, “Neither courts nor legislative bodies are well suited to police the sectarian content of prayers.” A date for the arguments has not yet been set.

The Supreme Court agreed in May to rule in the case [JURIST report]. The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] in May of last year that beginning the town’s meeting with prayer is an unconstitutional endorsement of religion [JURIST report]. Town board meetings in Greece, New York [official website] were admittedly led with prayer, typically Christian-based, although the town maintained that any faith was welcome to lead the council in prayer. Due to this stipulation, the plaintiffs alleged that this practice violated the Establishment Clause of the First Amendment, and received a summary judgment dismissal in district court. The Second Circuit overturned that judgment and ruled that while prayer may not be disallowed at the meetings, the current standards reflected a Christian viewpoint. The ruling further suggested that government entities have “an obligation to consider how its prayer practice would be perceived by those who attended Town Board meetings.” The court also made clear that they were not ruling against any form of prayer during the meetings, nor even nonsectarian ones, but that any prayer or invocation must be distanced to not be perceived as a government endorsement.