By Lawrence Hurley
WASHINGTON (Reuters) - The U.S. Supreme Court on Wednesday appeared deeply conflicted over what kind of public prayers should be acceptable at a town meeting as the justices confronted the delicate constitutional issue of church-and-state separation.
The court is weighing whether the practice of allowing mainly Christian prayers before public meetings in the town of Greece, New York, violates the U.S. Constitution's First Amendment ban on government endorsement of religion.
The justices openly questioned the value of court precedent, which allows for prayers before state legislative bodies based on the historical nature of the practice, but they appeared unsure what it could be replaced with.
Even the plaintiffs challenging the practice in Greece, an upstate New York town of 100,000 people, concede that some types of nonsectarian prayers are permitted under the Constitution. The difficulty facing the justices is to decide how courts should consider in what circumstances a prayer could violate the First Amendment.
How the court rules in the case could potentially affect government prayer policies across the nation.
Several justices voiced concerns about the difficulty of government officials policing the content of prayers to ensure that members of the public are not offended. Others focused on whether a town meeting should be treated differently from a legislative session.
Although the policy in the town of Greece does not embrace a particular religion, in practice all members of the public who gave a prayer were Christians until residents filed suit in 2008.
Susan Galloway, who is Jewish, and Linda Stephens, an atheist, filed the suit, saying the practice made them uncomfortable.
Justice Anthony Kennedy, often the swing vote in high-profile cases on the nine-member court, seized on one area of contention when he noted that it might appear odd for the court to treat a state legislature different from a town meeting.
"I don't think the public would understand that," he said.
He expressed doubts about the Supreme Court's 1983 case, Marsh v. Chambers, in which the court said legislative sessions could begin with a prayer in most circumstances. The court cited the "unique history" of the practice throughout U.S. history.
Kennedy wondered whether the ruling was the result of a "historical aberration" or whether there was a "rational explanation" for the decision. But he did not appear to embrace any other options floated by his colleagues.
As for the content of prayers, Justice Samuel Alito pointed out the difficulty of appeasing not just Christians but also Hindus, Buddhists, Muslims and people of other religious faiths.
"I just don't see how it is possible to compose anything that you could call a prayer that is acceptable to all of these groups," he said.
Several of the justices pointed out that a reference to God is made before the Supreme Court hears its arguments. Members of the public in attendance are asked to rise as the justices take their seats.
Justice Elena Kagan asked if it would be lawful if the chief justice also asked everyone to join in a prayer that made reference to Jesus Christ. Justice Sonia Sotomayor asked a similar question on the potentially coercive effect on attendees if the chief justice asked everyone in the room to stand up while he recited a prayer.
"How many people in this room would sit?" she asked Ian Gershengorn, a Justice Department lawyer arguing in support of the town. Gershengorn conceded that most would stand.
Both Kagan and Sotomayor appeared particularly troubled by the idea of members of the public feeling obliged to engage in religious activity before appearing in front of a government entity, like a court or town board, that they are asking for assistance from.
A resident attending such a meeting is "forced to identify whether she believes in the things that most of the people in the room believe in," Kagan said.
But Kagan appeared skeptical that the court could reach a conclusion that would resolve the question in an acceptable way, noting that previous court rulings had been unpopular.
"I think it's hard because the court lays down these rules and everybody thinks that the court is being hostile to religion," she said.
The case reached the high court after the 2nd U.S. Circuit Court of Appeals in New York ruled against the town in May 2012. A district court had previously supported the town's position by dismissing the lawsuit filed by Galloway and Stephens.
A ruling is expected by the end of June. The case is Town of Greece v. Galloway, U.S. Supreme Court, No. 12-696.
(Reporting by Lawrence Hurley; Editing by Howard Goller and Douglas Royalty)