Does a town violate the Establishment Clause of the First Amendment by starting its board meetings with prayer?
In 1999, the Town of Greece, New York (“the Town”), began starting its Town Board meetings with a moment of prayer. The Town developed an informal practice of inviting clergy to give the opening prayer, and those clergy who accepted were given the “Chaplain of the Month” award. In 2008, Susan Galloway and Linda Stephens started complaining about the practice because they felt it aligned the town with Christianity. Over the next year, the Town invited four non-Christian prayer-givers, but in January 2009, all prayer-givers were again Christian. Galloway and Stephens sued in the Western District of New York, claiming that the practice violated the Establishment Clause of the First Amendment. The district court granted summary judgment in favor of the Town. On appeal, the Second Circuit reversed, concluding that a reasonable person could believe that the practice affiliated the Town with Christianity. The Town petitioned for a writ of certiorari, which the Supreme Court granted to determine the constitutionality of legislative prayer practices. This case will address the boundaries of the freedom of religion and the meaning of the Establishment Clause of the First Amendment. The Court’s decision could effectively end long-standing governmental practices that contain religious connotations.
In Marsh v. Chambers, 463 U.S. 783 (1983), this Court upheld the practice of starting legislative sessions with an invocation, based on an "unambiguous and unbroken historyâ€ of legislative prayer dating back to the First Congress. Id. At 792. The prayers in Marsh were offered for sixteen years by the same paid Presbyterian minister and frequently contained explicitly Christian themes. See id. at 785, 793 n.14. Nonetheless, this Court held that such prayers are "simply a tolerable acknowledgment of beliefs widely held among the people of this country," and constitutional unless the selection of prayer-givers "stem[s] from an impermissible motive" or "the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." Id. at 792, 793, 794-95. The Court declined to apply the test from Lemon v. Kurtzman, 403 U.S. 602 (1971).
In this case, the court of appeals held that the Town of Greece violated the Establishment Clause by allowing volunteer private citizens to open town board meetings with a prayer. Though the Town had never regulated the content of the prayers, had permitted any citizen from any religious tradition to volunteer to be a prayer-giver, and did not discriminate in selecting prayer-givers, the court struck down the Town's prayer practice, applying an "en-dorsement" test derived from Lemon. See App. 17a. The question presented is:
Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.
- Nelson Tebbe: Symposium: The Puzzle of Town of Greece v. Galloway (Sep. 24, 2013)
- The Washington Times: Small Town, Big Impact: Supreme Court Case Could Define Religion's Role in Public (Oct. 3, 2013)