This morning, the U.S. Supreme Court ruled in favor of the Town of Greece that opening its city council meetings with a prayer does not violate the First Amendment's Establishment of Religion Clause.
Town of Greece N.Y. v. Calloway. Justice Kennedy wrote the majority opinion (except Part II.B). Justice Breyer dissented, with Justices Kagan, Ginsburg, and Sotomeyer dissenting in a separate opinion.
We've written about this case previously on the
blog, after the Supreme Court granted the Town's appeal and heard oral argument last year. This opinion is of interest to many municipalities who have, like the Town of Greece, opened their board meetings with a prayer. There was some question whether the Court would extend its previous opinion in
Marsh v. Chambers (that upheld the Nebraska state legislature's opening of its session with prayer). That question has been answered.
The Town of Greece, NY had opened its board meetings with a prayer since 1999. The Town relied on a "volunteer" list of clergy members in the Town to select prayer givers at a given meeting. From 1999 to 2007, all of the prayer givers were Christian. Plaintiffs Galloway and Stephens objected to the opening prayer, claiming that the Christian prayers excluded citizens who don't share that belief. In response, the Town invited a Jewish layperson and the chairman of the local Baha'i temple to deliver prayers. A Wiccan priestess was also provided an opportunity to give the invocation. Nevertheless, the plaintiffs sued, claiming that the Town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers.
The district court upheld the prayer practice as consistent with the First Amendment, holding that although most of the prayer givers were Christian, that reflected the predominantly Christian identity of the town residents. The court also rejected the plaintiffs argument that prayer must be "nonsectarian", relying on the U.S. Supreme Court's decision in Marsh v. Chambers. On appeal, however, the Second Circuit Court of Appeals reversed, finding that the Town's practice "endorsed" Christianity, particularly where the Town Board members bowed their heads and made the sign of the cross during and after the prayers.
The U.S. Supreme Court disagreed with the Court of Appeals on the plaintiff's Endorsement Clause claim. The Court summarized the question in the case as follows: Whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures that was upheld in Marsh v. Chambers. The court rejected the plaintiff's argument that prayer must be nonsectarian and not identified with any particular religion, finding that the Marsh case never suggested that the constitutionality of legislative prayer turns on the neutrality of its content. In fact, if the Court held as such, it would require courts to act as "supervisors and censors of religious speech," further involving government in religious matters. In short, Marsh permits chaplains to ask their own God (whether Jesus, Allah, or Jehovah or other) for blessings of peace, justice and freedom. Moreover, the Court did not find the Town's practice of inviting mostly Christian clergy to lead the prayer problematic, based on the Town's predominant Christian tradition.
The Court notes that the principal audience for the invocations is not the public, but the lawmakers themselves, "who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing." The Court pointed out that the Board did not direct or force the public to participate in the prayers. The Court concluded that the purpose of the prayer was ceremonial, not policymaking, and was not an unconstitutional establishment of religion.
Justice Kagan, joined by Justice Ginsburg, Breyer, and Sotomeyer, dissented. In the dissent's opinion, the Town of Greece's prayer practices violated the Establishment Clause. The dissent questioned the Town's almost exclusive practice of providing Christian prayers at its board meetings. The dissent also posited a number of "hypothetical" situations where prayer would be unconstitutional - during trial, at the polling booth, and at a naturalization ceremony.
The dissent distinguished the town board meeting setting from the legislative session at issue in Marsh because "ordinary citizens" come to town meetings to engage with and petition the government. The dissent found the Town of Greece's prayer practice more sectarian and less inclusive than Nebraska's practice.The dissent rejected the majority's finding that the prayer was not directed at the audience based on the clergy member's practice of facing the audience when giving the prayer.
It is interesting to note that the dissent would not have the court overturn Marsh nor would it reject any prayer at a municipal board meeting. The dissent would have the Town Board direct the clergy to speak in "nonsectarian terms, common to diverse religious groups." Alternatively, the Board could invite clergy of many faiths to serve as prayer givers so the Town does not identify itself with one religion to the exclusion of others. In the dissent's view, the "content of Greece's prayers is a big deal" and its prayer practice a clear violation of the Establishment Clause.
Post Authored by Julie Tappendorf, Ancel Glink
