Members of Congress are sending the U.S. Supreme Court a message: Let us pray.
In two amicus briefs filed this week, 34 (mostly) Republican senators and 85 (mostly) Republican representatives are urging the justices to allow the House and Senate to start their daily sessions with prayers that, as one brief puts it, seek "God's blessing and guidance in making consequential decisions."
The Supreme Court has agreed to hear arguments this session in Greece v. Galloway, where the U.S. Court of Appeals for the Second Circuit ruled in 2012 that the town's legislative prayers were unconstitutional endorsements of Christianity. The ruling could shape the interpretation of the First Amendment's Establishment Clause.
The Senate brief, crafted by a group of Winston & Strawn's appellate lawyers, argues that the Second Circuit decision threatens a tradition of appointing legislative chaplains and solemnizing legislative sessions with prayer that dates to the nation's founding.
"The work of the Senate is often divisive. But for a few moments each morning, politics and party are set aside," the Senate brief reads. "Instead of debate, senators reflect on their duty to represent every constituent, mindful of the Nation's core values and their need for divine assistance in carrying out their responsibilities."
The brief, filed Monday, was signed by seven Winston & Strawn lawyers: Steffen Johnson, Gene Schaerr, Elizabeth Papez and Andrew Nichols in Washington; and Linda Coberly, Michael Bess and William Ferranti in Chicago.
The approach that best serves the value of religious liberty in the First Amendment, the brief argues, is allowing "those who offer legislative prayers to pray in accordance with their own consciences."
Other circuits have split on the issue of legislative prayer recently. The Second Circuit's decision aligned with the 2011 ruling by the U.S Court of Appeals for the Fourth Circuit in Joyner v. Forsyth in 2011. A Ninth Circuit ruling in March joined with the Eleventh Circuit's Pelphrey v. Cobb County decision in 2008.
The brief for the group of mostly-Republican representatives, written by Kenneth Klukowski, counsel for Family Research Council in Washington, argues that confusion is the result of the “endorsement test” adopted in two Supreme Court cases—County of Allegheny v. ACLU, Greater Pittsburgh in 1989 and Van Orden v. Perry in 2005.
That test, which examines whether the selection of prayer-givers or exploitation of the prayer opportunity is an endorsement of a religion, should be thrown out and replaced with an objective standard, the brief argues.
"Legislative prayer jurisprudence has gone seriously awry," the brief, filed Tuesday, states. "Rather than doing so of its own accord, the disarray in the lower courts is the direct and predictable result of the endorsement test, with its insurmountable subjectivity and latent hostility toward even benign and historically-accepted acknowledgments of faith."
In Greece v. Galloway, a unanimous three-judge panel of the Second Circuit ruled against the town's prayer policy. Judge Guido Calabresi wrote that "a given legislative prayer practice, viewed in its entirety, may not advance a single religious sect."
The Americans United for Separation of Church and State filed a lawsuit on behalf of two community residents, Susan Galloway and Linda Stephens, arguing that the clergy invited to open its meetings with sectarian prayers have been almost always Christian.
Rev. Barry W. Lynn, executive director of Americans United, said in a statement in May that "government can't serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion."
The Supreme Court, which returns to session in October, has not listed a date for oral arguments.