When the Supreme Court heard oral arguments Wednesday morning about a case involving prayers at town board meetings in Greece, N.Y., the potential implications for Congress rang through the packed chamber.
The case pits the town against members of the public who contested the overwhelmingly Christian bent — with frequent direct reference to Jesus Christ as the savior — of the town board's opening proceedings.
Speaking for the federal government, Deputy Solicitor General Ian Gershengorn argued against some of the prayer opponents' positions. At one point, he specifically referenced a concern about a potential ruling that children could be unduly coerced by hearing prayers at legislative sessions.
"We think the other elements that the respondents have pointed to for coercion are ones that trouble us because they are things that have analogs in our history. So, for example, they point to the presence of children. But, of course, on the Senate floor are the Senate pages, who are all high-school juniors," Gershengorn said. "And as the reply brief points out, there are often children in the galleries at state legislatures being acknowledged."
The possibility that the current mix of justices would issue a broad ruling against legislative prayer seemed remote, but 34 senators (33 Republicans) were concerned enough about the possible implications for the Senate's daily prayer to file an amicus brief. Sen. Marco Rubio led that effort.
“Every day before the Senate meets, the chaplain comes out and gives a prayer. That's part of our country's tradition and a Constitutional right, and I thought it was important to defend that today. I think we're going to win, and I think it's going to affirm that fundamental right to religious freedom," the Florida Republican said in a statement after the proceedings.
Rubio crossed the street from the Capitol to attend Wednesday's oral arguments. Asked what he thought of the debate at the court, he offered the usual caveats about interpreting the actions of the justices.
"It's impossible to read what direction the justices were headed, but I think ... the attorneys who argued on behalf of our position did a very good job," Rubio said. "I noticed a lot of skepticism even among the more liberal members of the court about whether government should be involved in editing prayers and deciding what kinds of prayers are appropriate."
The Senate prayers of retired Adm. Barry C. Black gained national attention for pointed messages surrounding and during last month's government shutdown.
Justice Elena Kagan asked the attorney for the town if the Supreme Court could open its session with a prayer invoking Jesus Christ.
Thomas G. Hungar, the lawyer for the town, said he didn't think the Supreme Court could begin its workday with such a religious prayer, but he said the current case applied specifically to legislative prayer. The town board in Greece also has some executive and administrative functions.
Kagan then asked whether prayer was permissible in legislative committees. "Instead, it's in a congressional hearing room. Maybe it's a confirmation hearing, maybe it's an investigatory hearing of some kind, and that a person is sitting at a table in front of the members of a committee, ready to testify, ready to give his testimony in support of his nomination. The minister says the exact same thing."
Hungar said that, too, would be a different question from a legislative body opening sessions as a whole with prayer.
Prayers at congressional committee hearings aren't common, but they also aren't without precedent.
When Missouri Republican Todd Akin served in the House, his Armed Services Subcommittee on Seapower and Projection Forces would open sessions with particularly sectarian prayers.
"We pray for vision and wisdom in the decisions that we make, wise use of the funds that the taxpayers provide, and your blessing on all of us assembled here and those in service overseas. I pray in Jesus' name. Amen," Akin said at one meeting, CQ Roll Call previously reported.
Akin's prayers went beyond what's recommended for guest chaplains presenting the daily prayer to the House of Representatives, a point essentially made by Justice Stephen G. Breyer when he suggested use of the House guidelines.
"Suppose you did this. You combined your two approaches. The town ... must make a good faith effort to appeal to other religions who are in that area. And then you have these words from the House: 'The chaplain should keep in mind that the House of Representatives,' or you would say whatever relative group, 'is comprised of members of many different faith traditions,' period, end of matter. Is that sufficient, those two things?" Breyer postulated.
Douglas Laycock, a University of Virginia law professor representing the opponents of the current prayers, said such a move "would help immensely," noting that further action or instructions might also be needed.