Opening legislative meetings with prayer that does not coerce participation by nonadherents is not a violation
WASHINGTON – On Monday, May 5, the Supreme Court of the United States issued its opinion in Greece v. Galloway, with only a 5-4 consensus holding that prayers delivered prior to the town of Greece, N.Y. Board of Supervisors’ meetings, despite invoking the name of Jesus, do not violate the Establishment Clause of the U.S. Constitution.
Justice Anthony Kennedy, who delivered the opinion of the court, stated the court’s opinion was consistent with its 1983 opinion in Marsh v. Chambers and concluded, “The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.”
In 1999, Greece’s newly elected Supervisor John Auberger, decided to replace the moment of silence previously held before meetings with the invocation of prayer, a practice he found meaningful while serving in the county legislature.
Following the roll call and Pledge of Allegience, Auberger would invite a local clergyman to deliver an invocation.
After the prayer, Auberger thanked the minister for serving as the board’s “chaplain of the month” and presented him with a commemorative plaque.
Auberger asserted the invocation was intended to place the board members in “a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.”
A town employee contacted congregations listed in the local directory until she found a minister available for that month’s meeting and eventually compiled a list of those who accepted invitations to serve as board chaplains and agreed to return.
The town never excluded or denied an opportunity to a willing prayer-giver and the town’s leadership maintained that a minister or layperson of any persuasion, including an atheist, could deliver the invocation.
However, nearly all the congregations in town were Christian and, from 1999 to 2007, all the ministers who participated were as well.
According to court documents, Greece neither reviewed the prayers before hand nor provided guidance as to their content, in the belief doing so would infringe upon the ministers’ free exercise and speech rights.
The prayers typically evoked both civic and religious themes that “asked the divinity to abide at the meeting and bestow blessings on the community.”
One example provided, read: “Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility. . . . Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.”
The complaint was brought in 2010 by Susan Galloway, who is Jewish, and Linda Stephens, an atheist, who attended meetings regularly and criticized the town for opening all their meetings between 1999 and 2007 with Christian-themed prayers, which they found offensive.
Americans United for Separation of Church and State (AUSCS) sponsored the lawsuit and last year its Executive Director Rev. Barry W. Lynn stated, “A town council meeting isn’t a church service, and it shouldn’t seem like one. Government can’t serve everyone in the community when it endorses one faith over others. That sends the clear message that some are second-class citizens based on what they believe about religion.”
After their initial complaint, four meetings in 2008 had non-Christian invocations delivered, including those by a Jewish layman, a Wiccan priestess and a member of the Baha’i faith.
But during 2009 and halfway into 2010, the complaint alleged only Christian prayers were offered at meetings.
The court found there was insufficient evidence to support their assertions that Greece intentionally eliminated non-Christian invocations.
However, the Second Circuit Court of Appeals overturned the lower court’s ruling.
It stated, because the town used a local guide to find churches and that guide did not include those that were non-Christian, it should have expanded its search beyond the directory.
Greece appealed the decision last May.
The conservative legal organization, Alliance Defending Freedom, which encourages citizens and elected officials to pray according to their beliefs, represented the town, stated, “Such fierce opposition to prayer runs counter to centuries of American tradition, which has encouraged both private citizens and public officials to pray according to their beliefs.”
Quoting Marsh, which stated prayers in Nebraska were generally non-sectarian, the Supreme Court stated, “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society,” Kennedy wrote, “Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’”
Kennedy went on to state, “Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”
Kennedy found it would be a violation of the First Amendment if the town restricted prayers, as Galloway and Stephens insisted, to be nonsectarian or ecumenical as a single, fixed standard.
He wrote, “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.”
Justice Samuel Alito, in a separate concurring opinion, called the principal dissent Justice Stephen Bryer’s objection “quite niggling,” or petty, in determining the town could have avoided constitutional problems in one of two ways.
One would be by letting its chaplains know they should speak in non-sectarian terms, common to diverse religious groups.
Alito stated, “Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country.”
Bryer then suggested, as an alternative, the town could invite clergy of many faiths, whereas “… one month a clergy member could refer to Jesus and the next to Allah or Jehovah, to avoid a constitutional violation.
Alito countered by saying, “If … such a rotating system would obviate any constitutional problems, then despite all its high rhetoric, the principal dissent’s quarrel with the town of Greece really boils down to this: The town’s clerical employees did a bad job in compiling the list of potential guest chaplains. For that is really the only difference between what the town did and what the principal dissent is willing to accept.”
Alito concluded, “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.”
In a concurring opinion, Justice Clarence Thomas stated, “[T]o the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the ‘subtle coercive pressures’ allegedly felt by respondents in this case. The majority properly concludes that ‘[o]ffense . . . does not equate to coercion,’ since ‘[a]dults often encounter speech they find disagreeable[,] and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.’”
Justice Elena Kagan, in her dissenting opinion, wrote, “When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the town of Greece betrayed that promise.”