Justice Alito Smacks Down Justice Kagan’s Dissent In Prayer Case, Calls It ‘Highly Imaginative’

Samuel Alito

The Supreme Court ruled on Monday that opening prayers before town hall meetings do not violate the U.S. Constitution, but the tight, 5-4 decision exposed the bitter disagreement between the court’s conservative and liberal justices.

In the most striking example of that discord, Justice Samuel Alito tore into the principal dissent from Justice Elena Kagan, calling her examples of other times when prayer might be allowed in public “highly imaginative hypotheticals.”

The court ruled that Greece, New York, a small town far north of Manhattan, did not violate the Constitution’s separation of church and state established by the First Amendment, even if the opening prayers at its monthly town meetings were overwhelmingly Christian.

In her dissent, Kagan criticised the majority because Greece’s meetings “involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content.” She argued this differed from a 1983 case involving prayers in the Nebraska state legislature, which led the majority to rule for the town of Greece in its case case against plaintiff Susan Galloway.

Kagan imagined a plethora of hypotheticals express her dissent:

  • You are a party in a case headed to trial, in which you have filed suit against the government for infringing on one of your rights. The judge, Kagan argued, could agree to not begin the trial until a minister has said a prayer.
  • At your local polling place on Election Day, an election official could ask everyone to join him in a prayer. He could conclude, make the sign of the cross, and “wait expectantly for you and the other prospective vot­ers to do so too.”
  • You are an immigrant attending a naturalization ceremony. The presiding official could ask you and other applicants to join a minister in prayer at its start.

“I would hold that the government officials responsible for the above practices — that is, for prayer repeatedly invoking a single religion’s beliefs in these settings — crossed a constitutional line,” Kagan wrote.

Alito called special attention to the hypotheticals in Kagan’s dissent, writing he worried some readers would be concerned the U.S. was heading down a slippery slope because of Monday’s decision. He even hinted he felt Kagan’s hypotheticals were irresponsible.

“I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals,” he wrote.

“Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads — to a country in which religious minorities are denied the equal benefits of citizenship.

“Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.”