To avoid criticism, say nothing, do nothing, be nothing. — U.S. Supreme Court Justice Clarence Thomas, American Enterprise Institute speech, Feb 16, 2001


SCOTUS Decision on Prayer is a Disaster, Not a Deliverance

May 21, 2014   ·   By   ·   2 Comments

Many Christians and Christian groups and even churches and church leaders are celebrating the recent Supreme Court ruling in a case known as Town Board of Greece, New York v. Galloway.

It seems to be the conventional wisdom among these folks that the Supreme Court did a “good thing” in holding that the Town Board of Greece (and by implication, other legislative bodies) may pray before the commencement of their public functions.

Given the totality of the circumstances, however, I believe that this conventional wisdom is anything but wise.  In fact, I believe it to be the essence of foolishness.

Let me explain why.

The Establishment Clause, which is the Constitutional provision at the heart of this case, is comprised of only ten words.  Here is what it says:

“Congress shall make no law respecting an establishment of religion,”

So, the legal question before the court was whether this clause had been violated.  In other words, did the offering of prayer by the Town Board of Greece equate to Congress making a law, the effect of which is to establish an official United States religion?

Well, the answer seems to clearly be “NO” for at least two very simple reasons:

1)     The Town Board of Greece, New York, is NOT the “Congress”; and,

2)     A prayer offered at the Town Board meeting is not a “law.”  It is simply a prayer.

As I say, if you just read the Establishment Clause and consider the facts of the case, the answer is quite simple.  In fact, there really is no case.  The prayer at the Town Board meeting in Greece is not a violation of the First Amendment.

In order to find that a prayer in New York (or anywhere else) is a violation of the Establishment Clause, the first thing you have to conclude is that the Town Board of Greece, New York is, in legal contemplation, the Congress of the United States.

Crazy, you say?

I agree.  But this is exactly the conclusion the Supreme Court maintains through a “legal fiction” they call the “Incorporation Doctrine”.

Now, assuming that anyone would believe that the Town Board of Greece, New York, in the contemplation of the Framers of the Constitution, is Congress, you still have another obvious reality that you must cover up with some blue smoke and mirrors.  Namely, you need to employ another “legal fiction” to conclude that a prayer offered by a Town Board member is, in legal contemplation, a law made by the Congress.

Again, you say this is crazy.

Again, I agree.

Yet this, dear friend, is the essence of what has, for sixty-plus years, been sold to the public as First Amendment jurisprudence.

Rather than examine the simple text of the Establishment Clause, (remember: it is only ten words long) what the Supreme Court, and other federal courts, have done for more than six decades, is to invent (and reinvent) what they call “tests” and “legal fictions” for determining whether certain actions on the part of persons or organizations violate the Establishment Clause.

For example, in 1971, the case of Lemon v. Kurtzman introduced what became known as the “Lemon test.”  This test invoked phrases like “secular purpose” and “primary effect” and “excessive entanglement.”  In later cases like Lee v. Weisman (1992), the Court reinvented its test to examine degrees of “coercion.”

We can think of these “tests” that the court has confabulated just as we might think of the “smoke and mirrors” that the “great and powerful Wizard of Oz” employed to hide what was going on behind the curtain.

Essentially, the “great and powerful Wizards” on the Supreme Court, along with their fellow henchmen on the lesser federal courts, have used these phony “tests,” along with “legal fictions” to hide the fact that they are playing God.

These complicated, irrational, and evolving First Amendment “tests” are a farce and a snare.  They are like the Wizard’s distractions and are used to fool us into thinking he has powers that he does not have.

So, why do I say that the happy church leaders are foolish and the court has NOT done a good thing in deciding in favor of the Town Board of Greece, New York?

I say this because the Supreme Court ruling in this case is still based upon phony “tests” and the “legal fictions” rather than the actual text of the Constitution.  In fact, in this case the court has invented yet another “test” in order to justify its ruling in favor or the prayer.   Briefly stated, the court has invented a “ceremonial test.”  The Court has justified its ruling by declaring that if a prayer is simply “ceremonial” and “traditional” and intended to lend to the “solemnity” of the occasion, then it may be allowable.

In other words, if a prayer merely continues a ceremonial tradition and is not really intended to, nor likely to, convict anybody of the truth of its content, then it can be allowed.

Essentially, what the court is allowing are prayers that are vain.

Have these happy church leaders forgotten that God’s Word in Exodus 20:7 forbids us to take the Name of the Lord God in vain?

Don’t they see that the court will allow you to pray to the Lord God so long as you are doing it vainly and sinfully?

Don’t they see that the court, through phony tests and legal fictions, has taken a clause from the Constitution that forbids the government from establishing a religion and used it to establish the “religion” of atheism?

I hope and I pray that before all our liberties have vanished, we wake up to the supreme deception of the Supreme Court.

The Constitution is a clear and simply understood document.  Those who hate liberty try to convince us that it is so complicated that it requires their supreme expertise.

Let’s forget the tests and read the text.

Learn more about your Constitution with Michael Anthony Peroutka and his Institute on the Constitution and receive your free gift.

This article is printed with the permission of the author(s). Opinions expressed herein are the sole responsibility of the article’s author(s), or of the person(s) or organization(s) quoted therein, and do not necessarily represent those of American Clarion or Dakota Voice LLC.

Comment Rules: Please confine comments to salient ones that add to the topic; Profanity is not allowed and will be deleted; Spam, copied statements and other material not comprised of the reader’s own opinion will be deleted.

Similar Posts:

Michael Anthony Peroutka Esq. is a former Presidential candidate and co-founder of Institute on the Constitution (IOTC) an educational outreach of his law firm that presents the founders “American View” of law and government.  IOTC has produced thousands of graduates in all 50 states with a full understanding of the Biblical principles on which those founding documents are based. Michael is a graduate of Loyola College and the University of Baltimore School of Law.
Michael Peroutka
View all articles by Michael Peroutka
Leave a comment with your Facebook login
Print Friendly
  • retiredday

    In Henry The Sixth, Part 2 Act 4, scene 2 Shakespeare gave Dick the butcher this line:

    “The first thing we do, let’s kill all the lawyers.”

    The problem, as I see it, is that the the way lawyers and judges think today — the prevailing philosophy of “positive law” — is relative, situational and evolving. But the Constitution was written by and for people who’s philosophical thinking was based on natural law. See “Reply To Judge Richard A. Posner on The Inseparability of Law and Morality” by Ellis Washington.

    What the Supreme Court has been doing with its “tests” and “legal fictions” for “sixty plus years” is putting new wine in old wineskins (see Mark 2:22).

  • Publius Huldah

    And when the supreme Court makes rulings which are patently WRONG and in violation of the Constitution, it it is natural right of The People - The States - to nullify such unconstitutional rulings. After all, as James Madison pointed out in his Report on the Virginia Resolutions to the Virginia Legislature (1799-1800), the States - as the parties to the Constitution - have as much right to judge the usurpations of the judicial branch as they do the legislative & executive branches.

    If the people WE send to our State legislatures weren’t such ignorant cowards, wusses and wimps, they would have nullified these supreme Court decisions by instructing the public schools within their respective States to IGNORE the supreme Court decisions.

Fundamentally transforming America

   From Americans for Limited Government

Featured Articles


Left Moves to Outlaw Christianity

J. Matt Barber

The mask is off. All pretense has been dropped, and the anti-Christian left’s boundless depth of hatred for individual liberty, our First Amendment and the Religious Freedom Restoration Act (RFRA) is now on full display.


The Gordon Howie Highway

Bob Ellis

Highway 44 in Rapid Valley is becoming the "Gordon Howie Highway"! Gordon Howie for U.S. Senate signs continue to appear along this major thoroughfare through one of the most populated areas in South Dakota.


Just Islam

Victor Sharpe

The irrevocable Islamic and Koranic injunction upon all Muslims is to wage relentless war against any non-Muslim nation state that exists within what Islam decrees as the Dar al-Islam (the House of Islam). Wherever the Muslim foot has trod triumphal in the name of Allah, that territory is considered eternally Islamic land. If it is lost, then it enters the Dar al-Harb (the House of War) and must be retaken and the population either forcibly converted to Islam, forced into dhimmi degradation, or exterminated.


The Prez of the Divided Statez

A.J. Castellitto

Obama is the house guest you never wanted to come and who just won't freakin' leave! Every day it's something else. Another hole in the fabric. Right now our flag needs some serious mending.

Photo credit: CyberXRef

Despite liberal howls, Supreme Court’s Hobby Lobby ruling was right

Star Parker

Why exactly is it that Democrats find the Hobby Lobby decision so outrageous that in America religious freedom is respected? That we have law – The Religious Freedom Restoration Act under which the owners of Hobby Lobby sued the federal government – that assures that no federal law will substantially burden individuals in the practice of their religion. Paying for contraception would violate the Christian principles of Hobby Lobby’s owners.


"We don't intend to turn the Republican Party over to the traitors in the battle just ended. We will have no more of those candidates who are pledged to the same goals as our opposition and who seek our support. Turning the party over to the so-called moderates wouldn't make any sense at all." - Ronald Reagan, Nov. 10, 1964