Anthony Kennedy.
Anthony Kennedy. (Photo: Diego M. Radzinschi/NLJ.)

A divided U.S. Supreme Court ruled on Monday that local legislative bodies may open their meetings with mainly Christian prayers without violating the First Amendment’s bar against establishment of religion.

“Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation,” Justice Anthony Kennedy wrote for a 5-4 majority in the case Town of Greece v. Galloway.

The fact that most prayers given in Greece, N.Y., were by Christian priests and ministers does not prove a bias toward one religion, Kennedy also wrote. “So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing,” Kennedy wrote.

Chief Justice John Roberts Jr. joined the majority in full, as did Justice Samuel Alito Jr. Justices Antonin Scalia and Clarence Thomas joined the majority as well, except for one section of Kennedy’s opinion.

Justices Stephen Breyer and Elena Kagan wrote dissents. Justices Ruth Bader Ginsburg, Breyer and Sonia Sotomayor joined Kagan’s dissent.

Kagan objected to the sectarian nature of the prayers in the New York town. “Month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits,” Kagan wrote. “In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

The court majority relied heavily on the Supreme Court’s 1983 decision in Marsh v. Chambers. The justices in Marsh rejected an establishment-clause challenge to the Nebraska Legislature’s practice of opening its sessions with prayer by a paid legislative chaplain.

In the case before the court, the five-member town board defended its practice of opening its monthly sessions with a prayer by local clergy. Susan Galloway and Linda Stephens filed the constitutional challenge in 2008 after complaining to the town board that they found the practice offensive and received no response.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit held that the prayers—overwhelmingly Christian in nature for nearly a decade—gave the appearance of government endorsing religion in violation of the First Amendment’s establishment clause.

The Obama Administration supported the town and urged the justices to adopt the test in Marsh: legislative prayers pass constitutional muster as long as they don’t proselytize or advance or denigrate any one religion.

Religion scholar Douglas Laycock of the University of Virginia School of Law, counsel to Galloway, had argued that there should be no sectarian prayers. Officials, he told the justices during Nov. 6 arguments, need to advise clergy to stay away from points about which believers are known to disagree, and not to ask for physical participation in the prayers by citizens. Additionally, officials should separate the time for prayer from actions by the board, he said.

Contact Tony Mauro at tmauro@alm.com. Marcia Coyle contributed to this article.