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.
Questions as Framed for the Court by the Parties
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.
Greece, New York (“the Town”) is a town of nearly 94,000 residents, located just outside the city of Rochester, in Monroe County. Galloway v. Town of Greece, 681 F.3d 20, 23 (2nd Cir. 2012). Town residents can attend and participate in monthly Town Board meetings that decide the community’s affairs. Id.at 22. In 1999, John Auberger, the elected Supervisor of the Town, replaced the existing practice of opening meetings with a moment of silence, with the practice of starting with prayer. Galloway v. Town of Greece, 732 F. Supp. 2d 195, 197 (W.D.N.Y. 2010). Auberger did so after realizing that the latter was the tradition in Monroe County Legislature meetings. Id.
From 1999 to 2010, the Town did not have a formal process for inviting prayer-givers, determining the content of the prayers, or controlling any other aspect of the prayer practice. Galloway, 681 F.3d at 23. According to the Town, anyone could volunteer to offer an invocation without regard to the content. Id.However, since 1999, the Office of Constituent Services had followed an informal procedure that resulted in mostly Christian prayers. Id.Initially, the employees would call the religious organizations listed in the Community Guide, a publication by the Greece Chamber of Commerce. Id.Thereafter, the employees compiled a list of all the clergy who had accepted to give prayers, and would periodically update this list according to requests by community members and listings in the local newspaper. Id.at 24. Every prayer-giver would then receive the “Chaplain of the Month” award at the board meetings. Id.at 23. It was not until 2008, when Susan Galloway and Linda Stephens started complaining about the prayer practices, that non-Christians delivered four out of twelve prayers that year. Id. Nevertheless, between January 2009 and June 2010, all the invited prayer-givers were again Christian. Id.
In 2010, Galloway and Stephens brought suit in the Western District of New York pursuant to 42 U.S.C. § 1983, alleging that the practice of opening Town Board meetings with a prayer violated the Establishment Clause of the First Amendment of the United States Constitution. Galloway, 723 F. Supp. 2d at 196. They alleged that the Town intentionally excluded non-Christians from offering prayers at board meetings and that the Town impermissibly allowed sectarian prayers by members of Christian and non-Christian faiths. Id.The district court granted summary judgment in favor of the Town because it found that the invitation process for prayer-givers did not have the purpose or effect of proselytizing or advancing a specific faith but resulted from the fact that most of the Town’s houses of worship within the city limits were Christian. Id.at 240. Additionally, the district court found that Galloway and Stephens offered features of sectarian and non-sectarian prayers that were indistinguishable, making the distinction effectively arbitrary. Id.at 241. The Court of Appeals for the Second Circuit reversed and remanded the district court, concluding that an objective and reasonable person would, under the totality of the circumstances, believe that the Town’s prayer practice had the effect of affiliating the Town with Christianity. Galloway, 681 F.3d at 33. The Town filed a petition with the Supreme Court for a writ of certiorari. See Petition for Writ of Certiorari, Town of Greece v. Galloway, (2012) at i. The Court granted certiorari to determine whether the Town’s legislative prayer practice violates the Establishment Clause of the First Amendment. See id.
This case presents the Supreme Court with the opportunity to consider whether prayer before a legislative session is constitutional. See Petition for Writ of Certiorari, at i. The Town argues that legislative prayer is constitutional because it is a solemn practice deeply rooted in American history. See id. at 15–16. Galloway counters that legislative prayer has the impermissible effect of advancing one faith. See Brief of Respondents, Galloway et al., at 18. In this First Amendment case, the Court will address the border between church and state, and provide the lower courts with a standard for scrutinizing public prayer practices.
LEGISLATIVE PRAYER AS A HISTORICAL PRACTICE
In support of the Town, the United States notes that today, both the House of Representatives and Senate require that each legislative day begin with a prayer. See Brief of Amicus Curiae United States in Support of Petitioner at 2. This is a practice deeply rooted in U.S. history, the United States says, dating back to the first session of the Continental Congress in 1774, when Congress appointed chaplains to lead a prayer before each legislative day. See id. In the United States’ view, legislative prayer is a historical practice that solemnizes public occasions in the best possible secular way without violating the Constitution. See id. at 20–21. Furthermore, Indiana and seventeen other States in support of the Town contend that state legislatures have had an enduring legislative prayer practice similar to that of the federal government. See Brief of Amici Curiae State of Indiana et al. (“Indiana”) in Support of Petitioners at 6. The States note that in a recent survey, every state except for Hawaii responded that they open their legislative days with a prayer, and that Hawaii only stopped this practice in 2011. Id. Moreover, the States note, the two states that did not respond to the survey—New York and South Carolina–also follow the practice. Id.
Galloway favors ending religious prayer where it is forced on a captive audience at a board meeting. See Brief of Respondents, Galloway et al., at 20. Galloway’s supporters, including the American Civil Liberties Union, argue that the government should eliminate government-sponsored prayer because regardless of the context, it is hard to separate prayer from its religious connotations. See Brief of Amicus Curiae American Civil Liberties Union (“ACLU”) in Support of the Respondents at 7. Furthermore, the Freedom from Religion Foundation claims that legislative prayers in a public forum and on government property constitute government speech, and thus should not be permitted. See Brief of Amicus Curiae Freedom from Religion Foundation (“FFRF”) See Brief of Amicus Curia Freedom From Religion Foundation (“FFR) in Support of the Respondents at 29–30. The ACLU argues that relying on past legislative prayer practices to conclude that it is now a constitutional practice only makes sense if we incorrectly assume those legislatures were infallible. See id. at 10. Moreover, the ACLU asserts, even James Madison refused to issue prayer proclamations during the first three years of his presidency because he felt they violated the First Amendment. See id. at 11. Rather than starting with a prayer, the ACLU argues that legislative bodies can solemnize meetings with a moment of silence, without resort to religion, as the Town did before 1999. See id. at 12.
A CLEAR TEST FOR ANALYZING LEGISLATIVE PRAYER
The Town and numerous amici urge the Court to provide a guiding principle as to the constitutionality of legislative prayer. See Brief for Petitioners, Town of Greece, at 1–2. The Town supports the Marsh v. Chambers test, which focuses on the motive for selecting prayer-givers and intent to advance a faith, over the endorsement test, which focuses on the effect that prayer would have on the reasonable observer. See Brief for Petitioners at 10–11. In support of the Town, Reverend Robert E. Palmer claims that because courts are split on this issue, legislatures have been deterred from opening their sessions with prayer. See Brief of Amicus Curiae Rev. Dr. Robert E. Palmer in Support of Petitioners at 15–16. Moreover, Palmer argues, whereas the Marsh test provides a bright-line rule, the endorsement test requires a long, and likely expensive, fact-finding judicial inquiry. See id. at 16.
In support of Galloway, a group of political scientists urge the Court to focus on the coercive effects of legislative prayer at the local level. See Brief of Political Scientists Amici Curiae in Support of Respondents at 9, 25. In their view, local town meetings, unlike state and federal legislative sessions, involve a high degree of citizen participation where receiving public benefits often depends on such participation. See id. at 6-11. The political scientists argue that local government tends to focus on issues directly relevant to citizens, and therefore, depends entirely on community member participation. See id. at 12. As a result, they argue, prayer at those legislative meetings is coercive because citizens cannot abstain from attending such meetings without losing something of value. See id. at 25.
The Supreme Court will address the constitutionality of legislative prayer practices. Specifically, the Court will decide whether the Establishment Clause, which forbids the government from establishing a state religion or favoring one religion over another, is violated where a town conducts sectarian prayers during its town meetings and does not discriminate in selecting prayer-givers, but where adults and children face pressure to attend the meetings and participate in the prayers. See Brief for Petitioner, Town of Greece at i & 38; Brief for Respondent, Susan Galloway and Linda Stephens at i.
The Town and Galloway agree that the constitutionality of a town’s legislative prayer practice can be determined by three different tests: (1) whether the town’s practice unconstitutionally “coerces” someone to adopt a particular religion; (2) whether the town’s practice has the unconstitutional “motive/purpose” of advancing a particular religion; and (3) whether the town’s practice has the unconstitutional “effect” of advancing a particular religion. See Brief for Petitioner at 16, 22 & 27–30; Brief for Respondent at 20 & 46–47.
The Town claims that its prayer practice does not violate the Establishment Clause by coercing citizens to adopt a particular religion. See Brief for Petitioner at 38–39. First, the Town argues that the mere existence of legislative prayer is not coercion. See id. at 38–39. In the Town’s view, respect for religious liberty does not demand a complete divorce of contact between government and religion. See id. at 38. For example, the Town contends, in Marsh v. Chambers, the Supreme Court held that legislative prayer should be presumptively permissible, unless it is exploited to advance or proselytize on behalf of one religion to the exclusion or detriment of others. See id. at 38.
The Town also argues that the civic acknowledgement of religion, through forms like legislative prayer, is not coercion as long as individuals are not forced to participate. See id. at 38–39. According to the Town, this stems from the Framers’ understanding that people should be tolerant of their fellow citizens’ differing views and that the Establishment Clause should only prohibit the establishment of a national religion of the sort that existed in Europe in the colonial era. See id. at 39. Here, the Town asserts that its civic acknowledgment of religion does not coerce adherence to a particular religion because there is no threat of establishing such an official state religion. See id. at 35.
Galloway and Stephens counter that the Town’s prayer practice does violate the Establishment Clause by coercing citizens to adopt Christianity. See Brief for Respondent at 20–21. For example, they claim that citizens who attend the Town’s legislative meetings reasonably believe that they must participate in the meetings to get what they want from the Town’s Board. See id. at 21. In turn, they claim that citizens experience substantial pressure to participate in the prayers due to the format and nature of the Town’s meetings. See id. at 23.
Galloway and Stephens also claim that the Town’s definition of “coercion” strips the term of all meaning and offers no meaningful protection to citizens. See id. at 30. In their view, the Town wrongly claims that it must avoid forcing citizens to follow a particular religion, but need not avoid forcing citizens to participate in a religious exercise. See id. at 30. Galloway and Stephens, however, argue that religious participation must be considered in the “coercion” analysis because the Town cannot truly compel adherence to a particular religion. See id. at 31. Moreover, they argue that it is unreasonable to claim that the government may press a person to join in prayers as long as she is free to disbelieve them. See id. at 31. Galloway and Stephens argue that the practice of coercion likely cannot be eliminated but should be ameliorated to make clear that the prayer is only for those who choose to participate. See id. at 48.
The Town also claims that its prayer practice does not violate the Establishment Clause because it does not have the unconstitutional motive of advancing a particular religion. See Brief for Petitioner at 16. In Marsh, the Town contends, the Supreme Court held that opening a legislative session with a prayer is constitutional so long as the government does not select prayer-givers out of an “impermissible motive,” or otherwise “purposely exploit” the prayer time to advance or disparage a particular faith. See id. at 17–18. Under Marsh, the Town argues that its prayer practice is constitutional because the town made reasonable, good faith efforts to have an “equal-access policy,” which gave diverse prayer-givers an opportunity to participate. See id. at 19. Even though a majority of prayer-givers were Christian, the Town argues that the Marsh analysis does not create a presumption of impermissible motive because the Town had a legitimate reason for the disproportionate number: the local demographics and independent choices of religious leaders dictated who would be prayer-givers. See id. at 20. The Town further argues that because an impermissible motive is not present, the content of the prayers cannot be ascribed to the Town because it exercised no editorial control over the invocations and affirmed that it would not review or censor prayers. See id. at 21.
Galloway and Stephens counter that the Town’s prayer practice violates the Establishment Clause by having the motive of advancing a particular religion. See Brief for Respondent at 32. First, they argue that the Town’s prayer practice advances and proselytizes Christianity by invoking Christian theology. See id. at 33 & 35. They argue that the Town Board invited Christian pastors to offer prayers but did not ask its chaplains to refrain from proselytizing their own religion or from disparaging other religions. See id. at 33. Second, Galloway and Stephens argue that the Town’s “equal-access policy” was, in fact, non-existent because the Town never adopted any such policy. See id. at 36. Further, they contend that even though the Town’s policy did not have the motive of excluding non-Christians, it also did not try to include them. See id. at 37.
The Town also claims that its prayer practice does not violate the Establishment Clause because it does not have the effect of advancing a particular religion. See Brief for Petitioner at 16 & 27–30. In Allegheny v. ACLU, Greater Pittsburgh Chapter, the Town contends that the Supreme Court held that the display of a crèche on the staircase of a local government building during the Christmas season violated the Establishment Clause because, despite not having the “purpose” of advancing a religion, it effectively endorsed a Christian message to a “reasonable observer.”See id. at 23. Here, the Town argues that Allegheny’s “effect” test should not apply to the legislative prayer context because (1) the test redefines the constitutional boundaries established in Marsh; and (2) Allegheny did not specifically address the constitutionality of legislative prayer. See id. at 22 & 24. Further, the Town argues that the Court should not analyze the content of prayer because (1) content is of no concern to judges unless an improper purpose or motive first exists; and (2) analyzing prayer language embroils judges in intra-religious controversies that the Constitution requires courts to avoid. See id. at 26 & 41–42. Finally, the Town argues that even if the Court applies the “endorsement” test, a “reasonable observer” would find the town’s prayer practice constitutional because a reasonable observer would be aware of the history and context of the community in which the prayer occurs. See id. at 49–50.
Galloway and Stephens counter that the Town’s prayer practice has the “effect” of advancing a particular religion. See Brief for Respondent at 39. Specifically, they claim that because the Town’s equal-access policy is unconstitutional in its actual operation, the Town should not be allowed to hide behind the difficulty of proving purpose. See id. at 39. Galloway and Stephens argue that the Town’s “equal-access policy” was non-existent because the Town never officially adopted any such policy. See id. at 36. They agree that the Town did not have an impermissible “motive” of advancing Christianity, but that such advancement occurred because the Town neglected its constitutional obligations. See id. at 38. Moreover, Galloway and Stephens argue that Marsh’s boundaries are not being redefined; in that case, they claim, the Court did not address or approve prayers advancing a particular religion because the prayers were not explicitly Christian. See id. at 41. Under Allegheny, they contend, the Court clarified that Marsh is an illustration of permissible governmental sponsorship of a monotheistic but non-sectarian religious observance. See id. at 46–47. Third, Galloway and Stephens argue that nothing requires the Court or the town to ignore the context of the prayers because the court has no difficulty in identifying obviously sectarian practices, such as the sectarian crèche in Allegheny. See id. at 49–50.
In this case, the Supreme Court will address a fundamental question about the separation of church and state, and determine a proper interpretation of the Establishment Clause with regards to legislative prayer. The Court will examine different legal tests that courts have applied to legislative prayer and decide whether the Town of Greece’s prayer practice is constitutional—i.e., where the prayer practice does not discriminate in selecting prayer-givers or regulate the content of prayers, but citizens still feel pressure to attend the town meetings and participate in the prayers. The Town of Greece argues that its prayer practice does not violate the Establishment Clause because its prayer practice does not (1) coerce anyone to adopt a particular religion, (2) have the motive of advancing a particular religion, or (3) effectively advance a particular religion. Galloway and Stephens claim that the Town’s practice violates the First Amendment because it (1) coerces citizens to adopt Christianity, (2) has the motive of advancing Christianity, and (3) effectively advances Christianity. The Court’s decision will reshape First Amendment Establishment Clause doctrine and significantly impact many long-standing government practices that have religious connotations.
- 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)