A group of House and Senate Republicans have filed amicus briefs in a church and state case before the Supreme Court, asking that the Court not cut off their ability to open Congressional sessions with a prayer.
34 senators, 33 of them Republicans, argued in a brief that the case threatens "America’s tradition of appointing legislative chaplains and solemnizing legislative sessions with prayer dates."
“The work of the Senate is often divisive. But for a few moments each morning, politics and party are set aside. 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 senators wrote. Among the senators to sign on were Republicans Marco Rubio, James Inhofe, Ted Cruz, Mitch McConnell and John Cornyn, and Democrat Mary Landrieu.
The case, called Town of Greece v. Galloway, involved a New York town that had for years opened town board meetings with a prayer. The Supreme Court agreed to take up the case after, in 2012, the Second Circuit Court of Appeals ruled that the town violated the Establishment Clause of the First Amendment.
“In practice, Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town’s invitation,” the Circuit Court wrote. “We ascribe no religious animus to the town or its leaders. The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years. But when one creed dominates others — regardless of a town’s intentions — constitutional concerns come to the fore.”
A group of 85 mostly Republican House members -- including Louie Gohmert, Michele Bachmann and Trent Franks -- also signed on to a separate brief filed by an attorney for the Family Research Council, writing that they "are concerned over the growing exclusion of longstanding and historically-accepted acknowledgments of the Divine and expressions of religious faith in this Nation—whether religious speech or passive displays."
The brief continues that the Court should reconsider its use of the "endorsement test" when deciding religious liberty cases. The Blog of the Legal Times explains the argument:
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."
As Lyle Denniston from SCOTUSBlog pointed out, the Court hasn't looked at the question of government prayer since 1983, when it upheld government funding for chaplains making opening prayers in legislature sessions.