Skip to content
Catholic Online Logo

By Keith A. Fournier

5/22/2013 (2 years ago)

Catholic Online (

When prayer is engaged in at the beginning of legislative sessions will we soon have to submit it to obtain the approval of the State censors in black robes?

The case out of New York presents an opportunity for the US Supreme Court to bring needed clarity to Establishment Clause jurisprudence. I hope they do so. We have witnessed a growing governmental hostility toward religious faith and expression in the public square. It does not serve the common good, runs contrary to our founding documents, and is unfaithful to our history as a free people. It is an improper application of the Establishment Clause, found in the First Amendment to the Bill of Rights of the United States Constitution. It is a form of religious censorship which threatens our first freedom.

US Supreme Court

US Supreme Court


By Keith A. Fournier

Catholic Online (

5/22/2013 (2 years ago)

Published in U.S.

Keywords: Establishment Clause, Free Exercise Clause, Religious Freedom, public prayer, legislative prayer, ceremonial prayer,

WASHINGTON, DC (Catholic Online) - In the wake of the news that the IRS asked Pro-Life applicants for recognition of tax exemption under Section 501 about the actual content of their prayers comes news that another branch of the government has decided to examine the content of prayer.

The United States Supreme Court granted certiorari (Review) in the case of Town of Greece v. Galloway, et al. (docket 12-696) on Monday, May 20, 2013. Here is the official question as presented on the actual the docket of the Supreme Court. It summarizes the case and controversy.

In Marsh v. Chambers, 463 U.S. 783 (1983), this Court upheld the practice of starting legislative sessions with an invocation, based on an "unambiguous and unbroken history" of legislative prayer dating back to the First Congress. (Id. At 792.) The prayers in Marsh were offered for sixteen years by the same paid Presbyterian minister and frequently contained explicitly Christian themes. (See id. at 785, 793 n.14.)

Nonetheless, this Court held that such prayers are "simply a tolerable acknowledgment of beliefs widely held among the people of this country," and constitutional unless the selection of prayer-givers "stem[s] from an impermissible motive" or "the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief."( Id. at 792, 793, 794-95.) The Court declined to apply the test from Lemon v. Kurtzman, 403 U.S. 602 (1971).

In this case, the court of appeals held that the Town of Greece violated the Establishment Clause by allowing volunteer private citizens to open town board meetings with a prayer. Though the Town had never regulated the content of the prayers, had permitted any citizen from any religious tradition to volunteer to be a prayer-giver, and did not discriminate in selecting prayer-givers, the court struck down the Town's prayer practice, applying an "endorsement" test derived from Lemon. See App. 17a. The question presented is:

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Greece is a city in upper State New York which is home to about 100,000 residents. Like many cities, my own included, public legislative sessions begin with a prayer. Local clergy or lay leaders are regularly invited. As a member of the Clergy for 17 years, I have led such prayers on several occasions, locally and at the State level.  It is a wonderful practice and rooted in the history of the American experiment.

Two residents in Greece, New York,Susan Galloway and Linda Stephens, did not like prayer before legislative session. So, they literally made a federal case out of the practice. They sued, claiming the practice was unconstitutional. One of them, Susan Galloway, is the named plaintiff. Her name will be memorialized in the decision of the Court. 

They claimed that the prayer somehow constituted an establishment of the Christian religion. That claim was accepted by the Second Circuit Court - even though the facts clearly indicated that the prayers were offered by numerous representatives of various religious communities.

The Second Circuit took it upon themselves to decide that "a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion, violates the clear command of the [First Amendment's] Establishment Clause."

Their law suit ended up going all the way to the U.S. Supreme Court after the Second Circuit Court of Appeals held the practice to be unconstitutional. The courageous City leaders sought this review. The two complaining parties fought the review because they were happy with the Second Circuit opinion.

This dispute, since it has been chosen for review by the US Supreme Court, now has the makings of becoming a major Establishment Clause case. The last time the High Court addressed prayer at the beginning of legislative sessions was in 1983 in a case entitled Marsh v. Chambers, out of Nebraska.

In that opinion the Court upheld the practice of having a State Chaplain begin legislative sessions with a prayer as a matter of a tradition dating back to the American founding. It did not use the so called "Lemon Test", which it formulated in 1971. Thus, it did not consider the content of the prayer.

Since then, the High Court has considered prayer at graduation and at football games. In those cases it did analyze the content of the prayer. It also considered whether the party offering it was somehow a state actor thereby triggering this indecipherable application of the establishment clause.

The notion is that such a connection somehow constitutes a government endorsement of religion. Discerning the rationale used by the Supreme Court opinions in this vital area of constitutional law is futile, because there is none.

All who are concerned about religious freedom in the United States should watch this new case with great concern.  As a constitutional lawyer I have long questioned the current establishment clause law in our Nation. It is clearly an invention of a judicial branch increasingly hostile to religious faith and expression. 

In 1992, when I served as the Executive Director of the American Center for Law and Justice (ACLJ) I wrote a law review article entitled "In the Wake of Weisman: The Lemon Test is Still a Lemon but the Psycho-coercion Test is more Bitter Still". In that article, I trace the history of the interpretation of the Establishment clause of the First Amendment to the US Constitution and the developments of the last few decades.

I predicted the insanity that would follow from the efforts of the Supreme Court to apply the so called "Lemon Rule" (named after the Courts 1971 opinion in Lemon v Kurtzman) and it's ever expanding "interpretations" and permutations.

Insanity is precisely what has occurred.

We are experiencing a judicial ping pong game in the decisions coming out of the Supreme Court concerning the Establishment Clause.

As it relates to religious displays in the public square, there are incomprehensible opinions requiring a showing that religious symbols have a secular purpose - as though religion and the common good are mutually exclusive.

Federal Judges now make up their own rules and preferences by which they decide whether a religious symbol will be allowed to stand on public land or in a public building. There is not even a pretense that the actual words of the Establishment Clause have any effect.

As it relates to the longstanding practice of acknowledging God at the beginning of deliberations of government, the intolerant secularists are urging the Courts to become religious censors. The decision of the Second Circuit in the case the US Supreme Court accepted on Monday is an example of how bad it has gotten.

The Establishment Clause of the First Amendment to the Bill of Rights is best understood as an anti-establishment clause. It was intended to prohibit the establishment of one particular religion - in the sense of a Federal or State sponsored Church which mandated adherence from unwilling citizens.

The American founders fled coercive approaches to religion which compelled adherence to a particular sect. Yet, they were also not anti-religious. They were assuredly not against religious symbols or religious expression. Our history is filled with them. Or, more accurately, it once was.

Religious symbols and legislative prayers are no longer seen as part of the history of the West and the American founding. Rather, they are perceived as a threat to the secularist order. When symbols are allowed they are eviscerated of any real religious meaning. They become secular and acceptable.

The U.S. Supreme Court handed down two opinions in Ten Commandment cases on June 27, 2005 which added to the confusion. The Justices (at least five of them) upheld a display of the Ten Commandments on public land in Texas if the display is placed within the context of other displays that speak to the history of the Nation.

However, the Court also held that some displays of those same commandments, with the very same content, cannot adorn the walls of a courthouse, at least if they look like ones which hung in Kentucky. It appears that if the Ten Commandments are placed within the context of other codes governing human behavior, such as they are in the display hung right in the U.S. Supreme Court, they might be permissible.

When prayer is engaged in at the beginning of legislative sessions will we soon have to submit it to obtain the approval of the State censors in black robes?

The case out of New York presents an opportunity for the US Supreme Court to bring needed clarity to Establishment Clause jurisprudence. I hope they do so. We have witnessed a growing governmental hostility toward religious faith and expression in the public square. It does not serve the common good.

The effort runs contrary to our founding documents, and is unfaithful to our history as a free people. It is an improper application of the Establishment Clause, found in the First Amendment to the Bill of Rights of the United States Constitution. It is a form of religious censorship which threatens our first freedom.

Federal Judges make up their own rules by which they decide whether a religious symbol will be allowed to stand on public land or in a public building. They decide on their own what prayers are acceptable and which are not. There is no longer even a pretense that the actual words of the Establishment Clause, the Free Exercise Clause and the free Speech Clause have any objective meaning or effect.

Religious faith and expression - and the values informed by faith - serve and promote the common good. Religious freedom is a fundamental and basic human right which must be secured and protected by law in truly free Nations. Rightly understood and applied, religious freedom means a freedom for religious expression; not a removal of such expression from public places or a censoring of prayer from legislative sessions.


Pope Francis: end world hunger through 'Prayer and Action'

Copywriter 2015 - Distributed by THE NEWS CONSORTIUM

Pope Francis Prayer Intentions for October 2015
That human trafficking, the modern form of slavery, may be eradicated.
Evangelization: That with a missionary spirit the Christian communities of Asia may announce the Gospel to those who are still awaiting it.


More U.S.

BIGGER THAN ISIS - There's a hidden power behind ISIS and it's so big and so powerful, you won't believe this MASSIVE SHOCKING fact about it! Watch

Image of Obama is the titular head of the world's most nefarious terrorist organization, a title he may have inherited from his predecessor, and that will be passed to his successor.


If you were asked, what is the greatest hoax ever perpetrated in human history, how would you answer? Global warming? Vaccines? The Moon Landing? Entire religions?  (Not that we agree with these). But what would you say? In a moment, we're going to offer an answer ... continue reading

Happy Thanksgiving Day: Give Thanks with a Grateful Heart Watch

Image of Around tables throughout America, children, grandchildren and great-grandchildren gather with mothers and fathers, Grandpas and Grandmas, extended family, neighbors and friends to thank God and one another. And then, we feast; not only on the food, but even more importantly, on the gift of the love which informs all family relationships and true friendships, the real source of lasting joy, the love of the God who gave us life and liberty.

By Deacon Keith Fournier

Happy Thanksgiving Day. May it be a day for love and gratitude. No matter how difficult the challenges we face as a Nation, we have much to be grateful for. As we give thanks, we will find the strength we need to love even more fully. As we practice regularly ... continue reading

New ISIS video taunts United States to 'bring it on' Watch

Image of While the video is pumping up Islamist State, the fact of the matter is is the group is suffering heavy losses on the ground form allied bombardment, especially since Russia began bombing the group


A new video from the Islamic State is highlighting the high number of U.S. soldiers who commit suicide, in effect to tell the world's last remaining superpower to "bring it on." U.S. President Barack Obama has since dismissed ISIS as "a bunch of killers with ... continue reading

Horrific outrage erupts over proposed mosque in Virginia after Paris attacks Watch

Image of The Muslim community in Fredericksburg, Virginia has received support from the local Christian and Jewish clergy.


"Nobody wants your evil cult," declared a man at a zoning meeting in Fredericksburg, Virginia. He was lobbing his invective at several American Muslims there over a proposed mosque to be built there. "Every one of you are terrorists. I don't care what you say. ... continue reading

The revealing truth behind the traditional presidential Thanksgiving turkey pardon Watch

Image of President Ronald Reagan was the first U.S. president to use the word


President Obama will pardon two turkeys - named Tom One and Tom Two - from a turkey farm in Modesto California on Thanksgiving Eve as part of an annual presidential tradition. Obama will make a few jokes with his family and then pardon the turkeys to live out ... continue reading

'Domestic terrorism': 5 People shot during Black Lives Matter protest in Minneapolis Watch

Image of Despite a shooting at a Minneapolis Black Lives Matter protest, the group plans to return to the precinct to continue their protests.


Protesters were standing outside the 4th Precinct in Minneapolis for Black Lives Matter in the case of 24-year-old Jamar Clark when gunshots rang out. LOS ANGELES, CA (Catholic Online) -Five protesters were shot outside the police station Tuesday afternoon as one ... continue reading

Planned Parenthood sues the State of Texas: Find out why NOW Watch

Image of The complainants maintain that planned intervention of the government is a violation of the federal statute and the 14th Amendment, which ensures equal protection.


Planned Parenthood filed a lawsuit this week against the State of Texas for blocking its Medicaid funding. Planned Parenthood says that the decision was motivated by politics - and not because of health care concerns. LOS ANGELES, CA (Catholic Online) - The ... continue reading

Terror threats spark shocking WORLD WIDE TRAVEL ALERTS Watch

Image of In either case, travelers can expect beefed-up security at airports in the coming weeks - and longer lines.


It is the start of the holiday season in the United States - and with the world still thoroughly rattled after the attacks in Paris this past November 13, travel alerts are in high effect. Even worse, those who decide to stay home through Thanksgiving and ... continue reading

Ordinariate of the Chair of St Peter, Catholics nurtured in the Anglican tradition, receives its First Bishop Watch

Image of Fr Randy Sly, a Catholic priest of the Ordinariate of the Chair of St Peter.

By Deacon Keith Fournier

The Personal Ordinariate of the Chair of St. Peter is equivalent to a diocese for Roman Catholics who were nurtured in the Anglican tradition. The Ordinariate was created by the Vatican on Jan. 1, 2012.On November 24, 2015. Pope Francis announced the appointment of ... continue reading

EVIL AGAINST EVIL: Mafia boss says his group will protect New York City against Islamist State Watch

Image of Now pursuing a screenwriting career, Giovanni Gambino says that following the terror attacks in Paris on November 13, protection is more important than ever.


It is highly ironic, an example of the kettle calling the pot black as it were . Son of New York mob boss Giovanni Gambino is warning the Islamic State that if they decide to take New York City on, they will have the mafia to contend with.  LOS ANGELES, CA ... continue reading

All U.S. News


Newsletter Sign Up icon

Stay up to date with the latest news, information, and special offers

Subscribe to Catholic OnlineYouTube Channel

the FEED
by Catholic Online

  • Happy Thanksgiving Day: Give Thanks with a Grateful Heart
  • St. James Intercisus: Saint of the Day for Friday, November 27, 2015
  • The Miracle Prayer HD Video
  • Bet you've never seen a space rocket do THIS!
  • Daily Readings for Friday, November 27, 2015
  • Prayer For Courage HD Video
  • UPDATE: Did the U.S. military actually know they were bombing the ...

Daily Readings

Reading 1, Daniel 6:12-28
12 These men came along in a body and found Daniel praying and pleading ... Read More

Psalm, Daniel 3:68, 69, 70, 71, 72, 73, 74
68 Bless the Lord, dew and snow-storm, praise and glorify him for ... Read More

Gospel, Luke 21:20-28
20 'When you see Jerusalem surrounded by armies, then you must realise ... Read More

Saint of the Day

Saint of the Day for November 26th, 2015 Image

St. John Berchmans
November 26: Eldest son of a shoemaker, John was born at ... Read More