WASHINGTON, D.C. (Aug. 6, 2013) — Is allowing prayer at public meetings an example of the free exercise of religion as guaranteed by the First Amendment or an illegal governmental establishment of religion?

To assist courts in threading this needle, the ACRU is promoting a unique, new doctrine called the Coercion Test.

In a brief filed on Aug. 2 at the U.S. Supreme Court in Town of Greece v. Susan Galloway and Linda Stevens, ACRU General Counsel Peter Ferrara defends the upstate New York town’s practice of allowing rotating, voluntary prayers before council meetings and explains the Coercion Test:

“At the time the First Amendment was adopted, the countries of Europe each maintained their own preferred ‘Establishment of Religion’, which meant an official government religion enforced by laws requiring attendance at the official church, regular contributions to it, and other preferences in law for members of that church. These establishment policies all involved government coercion to force citizens to support the one favored church.

“Almost all of the American colonies had such establishments as well, with legal compulsion or coercion as their hallmark.

“These practices, and anything like them involving coercion in regard to religion, are what the framers meant to prohibit in adopting the Establishment Clause, for this is what an Establishment of Religion meant at the time. They did not mean, however, to prohibit any voluntary, public, religious speech, or religious expression or symbolism, which do not involve any such coercion.

“On this basis, we urge this Court to adopt a new standard evaluating alleged Establishment Clause violations based on whether the challenged policy, practice, or action involves coercion in regard to religion.”

Noting the unbroken line of prayer at public meetings through the history of the United States, including those led by George Washington, the brief notes that, “Our nation’s leaders from the framers to this day engaged in these practices without any concern that they somehow violated the Establishment Clause because they did not involve any coercion, only expression.”

Citing the Court’s reliance on Constitutional originalism in its 2008 District of Columbia v. Heller ruling upholding the Second Amendment’s guarantee of an individual right to keep and bear arms, the ACRU brief calls on the Court similarly to rely on “the text of the Constitution itself, and the historical context informing the meaning of the words used.”

Download the brief here. (PDF)