The issue of public prayer was once again before the United States Supreme Court in the recent case of Town of Greece, New York v. Galloway, et al., 134 S.Ct. 1811 (2014). After an extensive analysis of the facts at issue, as well as American historical practice, the Court, through a majority opinion drafted by Justice Kennedy, ruled in favor of the town of Greece.
Galloway dealt with the local Town Board meetings of the small town of Greece, New York. The meetings took place on a monthly basis and were the forum for local municipal legislation and municipal decisions, such as whether to grant or deny zoning variances, as well as the opportunity for local citizens to express their concerns to the Board. Since 1999 the Board meetings have begun with an invocative prayer said by a local clergyman (sometimes called a chaplain) who faced the gathered citizens (as opposed to the Board) and more often than not invited those collected at the meeting to join him in his supplication to the Almighty.
The Plaintiffs in Galloway took issue not with the fact that the Board meetings begin with a prayer but the fact that the prayers are overwhelming offered by Christian clergy with a Christian theme and Christian references. Plaintiffs merely wanted the prayers offered to be more inclusive and only refer to a generic god. Plaintiffs brought suit against the town of Greece claiming that the aforesaid prayers, due to their frequent emphasis on Christianity, violated the First Amendment to the United States Constitution’s prohibition against an established religion.
Justice Kennedy wrote the majority opinion, ruling in favor of the town of Greece, and finding that the prayers described above did not violate the Constitution’s Establishment Clause; Justices Alito and Thomas wrote concurring opinions and Justices Breyer and Kagan wrote dissenting opinions.
In making his ruling, Justice Kennedy took note of a few facts to flesh out those described above. He noted the fact that none of the clergy selected were paid. Further, they were selected through the effort of the Board’s administrative staff contacting the local houses of worship as listed in the local Chamber of Commerce directory. There was no policy in Greece, official or unofficial, to only select Christian clergy. Greece never denied a non-Christian, if requested, to have an opportunity to offer the prayer before the Board meeting. Indeed, Greece never made any suggestions, stipulations, or requirements for the content of the prayers. Greece, when made aware of concerns, such as those made by Plaintiffs about the Christian bent of the clergy and prayers, made a conscious effort to seek out non-Christian people to offer the legislative prayers. Namely, Jewish, Baha’i, and even Wiccan prayers were subsequently offered by people who subscribe to those respective religions. Notably, Justice Kennedy did not believe that the prayer at issue was for the purpose of proselytizing or advancing one religion or disparaging others. Finally, Justice Kennedy noted that Greece was overwhelmingly Christian (over 90%) and virtually all of its houses of worship are also Christian; consequently, when seeking out clergy to pray, the Board administrative staff, without intent to discriminate, merely sought them from the houses of worship located in Greece as listed in the directory provided by the Chamber of Commerce. As it turns out, the synagogues, for example, which could have provided rabbis to offer (likely Jewish-oriented) legislative prayers to the Board are located just outside the boarders of Greece in neighboring Rochester and, therefore, not in the directory provided by the Chamber of Commerce.
Justice Kennedy’s ruling relied very heavily upon an analysis of American historical tradition. It is Justice Kennedy’s view that prayers before a legislative body’s session (and he viewed the town of Greece’s Board to be a legislative body) serve, in part, the purpose of helping those present to be put into a solemn and deliberative frame of mind and lend gravity to the proceedings; significantly, the prayers did not take place while any legislation took place. He also engaged in an extensive description of American history. He noted that Congress has had legislative prayers since the dawn of the founding of the United States and, further, practically every state in the union has legislative prayer as well, most since their founding. Such symbolic expressions, such as legislative prayers, to Kennedy, serve as a tolerable acknowledgment of widely held beliefs. Indeed, Kennedy stated that the near universal practice, since the founding of the nation, of legislative prayer, all of which has survived constitutional analysis, logically implies that there is nothing in this practice which threatens the Establishment Clause of the U.S. Constitution. Additionally, when reviewing American history and practice, he found nothing to support the notion that, if permitted, legislative prayer had to somehow be non-sectarian or ecumenical. Indeed, in Kennedy’s view, government censoring and/or editing of the prayers would violate the Constitution as it involves unlawful government analysis of religion and its teachings/doctrines. Contrariwise, Justice Kennedy found the opposite, namely that the prayers, which have been offered since the country’s founding, often do have a sectarian bent or focus (by coincidence, typically Christian) and none of these have been found to run afoul of the Establishment Clause. Instead, Kennedy asserted, once prayer is invited into a legislative session, the government must permit the person delivering the prayer to pray as his conscience dictates. The long tradition of legislative prayer in this country assumes that those listening are firm in their own beliefs and tolerant of ceremonial prayer, even if delivered by someone of a different faith.
Justice Kennedy, even if there may have been a prayer at a Greece town Board that was objectionable, did not see any sort of pattern of behavior which would suggest a successful constitutional challenge. In Kennedy’s view, the fact that Greece happens to be overwhelming Christian, which necessarily influences who its Board selects as its chaplain to deliver its prayers, is not relevant, while the fact that Greece has a policy of non-discrimination is directly relevant. Kennedy did not believe Greece has any obligation to seek out chaplains outside of Greece or specifically non-Christian chaplains to deliver the prayers at its Board meetings. Kennedy did not believe that anyone present would feel unconstitutionally coerced into unwilling participating in a religion not of the listener’s choice; indeed Kennedy pointed out that the members of the public where never directed, obliged, and/or coerced to participate. Instead, Kennedy ruled that it is presumed that a reasonable observer would be familiar with the tradition of legislative prayer and its purpose in that context (described above). Regardless, Justice Kennedy asserted that taking offense does not equate to being coerced; in his view a brief acknowledgment of religion for a ceremonial purpose, even if sectarian, is consistent with the Establishment Clause.
Concurring and dissenting opinions were also entered by Justice Kennedy’s colleagues and they are described briefly below. Justice Thomas entered a concurrence which emphasized his position that the long-standing doctrine of constitutional incorporation through the 14th Amendment to the Constitution does not apply to the Establishment Clause. Notably the citations in his concurrence were largely to his own previous opinions. Justice Thomas argues that as the Establishment clause directly references Congress it, by its own terms and, therefore, by definition, cannot be applied to the states as it applies only to Congress, which would leave states open to establishing local state religions. Justice Alito wrote separately only to point out that the dissent merely wishes the prayer to be generic and nonsectarian, not ban the practice of the prayer altogether. In Justice Alito’s, view then, the dissent’s issue is prayer topic not the prayer itself and he did not find any support in American jurisprudence for the suggestion that legislative prayer must be nonsectarian. Further, in light of the fact that Greece had no animus toward religious minorities, did not intentionally discriminate, and tried to achieve some diversity, Justice Alito believed the other matter with which the dissent took issue could simply be summed up as a criticism of Greece’s poor chaplain selection process, which, in Justice Alito’s view, could easily be remedied and did not rise to a constitutional violation.
Justices Breyer and Kagan submitted dissenting opinions. Justice Breyer took note that Greece, when selecting chaplains, knew that it would be unlikely that a non-Christian would be chosen from among the clergy in the town, did not inform anyone in the town that they would accept chaplain volunteers, and did not instruct the chaplains not to proselytize or disparage the faith of another; in other words, Christianity was, if not de jure, was de facto established by the legislative prayers at issue herein. He felt the actions of Greece to become more diverse (e.g.: seeking out chaplains of other faiths) were too little to late, especially as they were only taken due to complaints and the subsequent litigation which led to his opinion.
Justice Kagan’s dissent takes the reader through a series of hypothetical situations in which she asks the reader to place himself into them as an imaginary participant. Justice Kagan’s dissent echoed that of Justice Breyer in most respects. Ultimately, for Justice Kagan, she believed the consistent, for many years and month upon month, of a nearly unbroken string of Christian prayers at the Board meetings amounted to endorsement of Christianity by the Board. Especially, like Justice Breyer, she believed the efforts taken by the Board to diversify were rather weak. Justice Kagan, too, like the majority, cites to American tradition and finds various references from the Founders to desiring a religiously inclusive nation which, she believed, did not find its fulfillment in Greece. Relatedly, Justice Kagan distinguishes the long tradition of Congressional prayer from the prayer in Greece as the prayer offered before Congress is made only to its members, and Congress does not receive direct participation from the public, all of which is the exact opposite to Greece’s Board where prayer for the proceedings is offered to the public while the public directly participates at the Board meetings. Further, she focused heavily on the potential thoughts and feelings of a hypothetical participant at the Board meetings. Justice Kagan felt that a chaplain, facing the people (not the Board), at a Board meeting where the public is invited to speak to the Board, placed a scrupulous non-Christian in the unenviable position of forcing him to choose between participating in a prayer that offends his conscience or making himself known – and separate from the rest of his town – by refusing to participate in the prayer. She wondered what the potential effect his public refusal to participate in the prayer could be on what he sought from the Board. For Justice Kagan, a member of the public ought not have to worry about whether his participation in a prayer could (or would) effect the success or failure of his goals at the Board meetings. She believed such a choice to be unconstitutional as it created a de facto religious standard for a Board meeting and coerced those in attendance to, more or less, participate in religion (or publicly separate oneself from it).
Although sharply divided by a 5 to 4 vote in its decision, all 9 justice appear to agree that legislative prayer, which is religious but generally non-sectarian (especially if it only involves the legislature as opposed to the general public present) meets Constitutional scrutiny. At present, the mind of the Court is that legislative prayer, even if largely sectarian, is compliant with Constitutional standards as long as it does not proselytize or disparage other religions and the legislative body (or government) engaged in the prayer is non-discriminatory in its selection of prayers and chaplains.
Originally published on June 24, 2014 in The Legal Intelligencer and can be seen here.