Sun Investigates

Professor says Supreme Court drew flawed conclusion from book

It's not every day that a law professor has his book quoted by the Supreme Court, and so the University of Baltimore's Michael I. Meyerson was understandably intrigued when his 2012 work about the Framers' views on religion made it into Monday's decision on public prayer.

But the plug from Justice Anthony M. Kennedy, who wrote the majority opinion, was somewhat bittersweet. Meyerson says the decision misread the point of his book and took the quote out of context in a way that allowed the justices to draw an entirely different conclusion about how the Founding Fathers approached religion in public.


In its 5-4 decision in Town of Greece v. Galloway, the high court found that a town board in upstate New York did not violate the Constitution when it offered mainly Christian prayers during its public meetings. The decision had particular resonance in Maryland, where commissioners in Carroll County have been waging a similar battle over prayer in a separate federal case.

"Respondents maintain that prayer must be nonsectarian," Kennedy wrote. "A prayer is fitting for the public sphere, in their view, only if it contains the 'most general, nonsectarian reference to God,'" he added, drawing the definition from and citing Meyerson's book "Endowed by Our Creator: The Birth of Religious Freedom in America."


Kennedy then argues why the court felt that argument is all wrong. His decision cites Christian prayers offered during early sessions of Congress. It notes the invocation of Jesus Christ at the first prayer delivered to the Continental Congress in 1774, for instance, and "'forthrightly religious' Thanksgiving proclamations issued by nearly every president since Washington."

But a central point of Meyerson's book is that the Founders took a nuanced and exceedingly careful public approach to religion, particularly as the Constitution was drafted. When dealing directly with the public, Meyerson argues, George Washington, Thomas Jefferson and James Madison applied a different standard than they used among themselves.

"They did not insist on a godless government, and their religious statements were not empty 'ceremonial deism,'" Meyerson writes in his book soon after the section quoted in the decision. "Yet they strove to find a civil vocabulary that could encompass all people, regardless of their faith."

Meyerson contends that the counterexamples cited in the majority opinion are off point: They either took place before the Constitution was drafted — which Meyerson describes as a turning point in the Framers' thinking — or they involve assemblies of lawmakers rather than rooms full of citizens. Those who opposed the decision argued that there is a difference between congressional proceedings and local meetings that generally invite more public participation.

Meyerson, who joined the University of Baltimore's law school in 1985, is pleased the book got a mention. But he isn't going to give up on trying to help people understand what he views as an important bit of context missed by the court's decision.

"What we don't understand in today's partisan environment was how careful and respectful the Framers were," he said. Once the Constitution was drafted, when government spoke to the people, it "carefully and deliberately did not use sectarian language."