Pastor Mike Metzger, right, of First Bible Baptist Church, leads a moment of prayer at the start of the Greece Town Board meeting on March 18, 2014. (AP/Carolyn Thompson)
WASHINGTON D.C. – Local governments struggling with whether their common practice of opening meetings with prayer crosses a constitutional line should breathe much easier following the U.S. Supreme Court’s ruling on Monday.
Even if the offered prayers reflect adherence to a single religious belief, that may not run afoul of the First Amendment’s prohibition on an establishment of religion, a 5-4 majority held.
“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.
So long as the government body maintains a policy of nondiscrimination, Kennedy said, “the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.”
See Related Story: Centuries Later, Religious Freedom Debate Rages On
At least one local government unit recently enjoined from offering prayers received immediate relief following the high court ruling. A federal judge in Maryland on Monday vacated a preliminary injunction against the Carroll County Board of Commissioners, but the challengers in that lawsuit vowed to press on with their suit.
In Monday’s Supreme Court ruling, the majority based its decision in Town of Greece, N.Y. v. Galloway on the high court’s 1983 decision in Marsh v. Chambers, 463 U.S. 783, which upheld the constitutionality of prayers offered at openings of the Nebraska legislature. The Marsh decision itself was based on the nation’s long historical tradition of legislative prayers. But there has been continuing debate and litigation in the ensuing years over what limits, if any, Marsh imposes on the prayer practice.
Although the justices divided in Monday’s decision, they voiced unanimous support for that 1983 decision.
In fact, Justice Elena Kagan, writing the main dissent joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, emphasized that a town hall meeting “need not become a religion-free zone.”
However, where the two sides sharply divided was in their view of the nature and the effect of the prayers being offered by Greece’s town board.
Beginning in 1999, the town board opened its monthly meetings with predominantly Christian prayers by a local clergy member randomly selected from a list in the Community Guide book published by the local chamber of commerce. Before 1999, the meetings opened with a moment of silence.
Greece residents Susan Galloway and Linda Stephens filed the constitutional challenge to the town board’s prayer practice in 2008 after complaining to the board that they found the practice offensive and receiving no response. The challengers said the prayer-givers stand behind a podium adorned with the town’s official seal, and deliver the prayers over the town’s public-address system. And they usually begin with a request for attendees to join in the prayer.
After the two women complained—and for the first time in the history of the town’s prayer practice—the town scheduled three non-Christians to deliver prayers at four of 12 board meetings in 2008, the year in which the lawsuit was filed.
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.
In his opinion, Kennedy said the test in Marsh controlled the case, not the so-called endorsement test used by the Second Circuit and first crafted by Justice Sandra Day O’Connor for establishment-clause violations. He rejected the challengers’ two main arguments: First, that Marsh did not approve of prayers containing sectarian language or themes like those in Greece that referred to Jesus Christ; and, second, that the setting and conduct of the town board’s meetings coerced nonadherents to remain in the room or feign participation to avoid offending town officials who might be acting on their requests or problems.
“To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact,” Kennedy wrote.
On the coercion issue, he said the prayers are directed to the board members and, as far as their effect on the audience, “Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”
The main “constraint” imposed on the prayer practice, he said, “derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the nation’s heritage. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not ‘exploited to proselytize or advance any one, or to disparage any other, faith or belief.’ “
Writing for the dissenters, Kagan said the town board’s prayer practice did not fit within the tradition of prayer practices by Congress and the Nebraska legislature. Instead, the town meetings involved “participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s board did nothing to recognize religious diversity.”
She added, “If the town board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. Or if the board preferred, it might have invited clergy of many faiths to serve as chaplains, as the majority notes that Congress does.”
Justice Clarence Thomas wrote a concurring opinion in which he repeated his belief that the establishment clause did not apply to the states. Although the clause “probably” prohibits Congress from establishing a national religion, he said, its text suggests that Congress could not interfere with state establishments of religion. No other justice joined that part of his concurrence.
The Obama administration supported the town in the high court by urging the justices to apply their 1983 Marsh decision. Twenty-three states also filed an amicus brief on behalf of the town, asking the court to clarify this area of the law and arguing that lower courts were departing from Marsh (See Briefs).
David Cortman, senior counsel at Alliance Defending Freedom, which represented Greece, applauded the decision, saying, “Opening public meetings with prayer is a cherished freedom that the authors of the Constitution themselves practiced. Speech censors should have no power to silence volunteers who pray for their communities just as the founders did.” The case was argued for the Alliance by Thomas Hungar of Gibson, Dunn & Crutcher.
The challengers were represented by religion scholar Douglas Laycock of the University of Virginia School of Law.
The American Civil Liberties Union, which supported the challengers, voiced disappointment with the ruling. “The constitutional requirement that church and state must be separated rests, in part, on the understanding that when government supports one religion over others, people who are not members of the favored religion are made to feel like outsiders by their government,” said Arthur Eisenberg, legal director of the New York Civil Liberties Union.
@|Marcia Coyle covers the U.S. Supreme Court for The National Law Journal. She can be reached at firstname.lastname@example.org.