In Marsh v. Chambers, the Supreme Court upheld the practice of starting legislative meetings with prayer due to the ritual’s deep-seated history, which dates back to the First Congress. A petition for certiorari in Town of Greece v. Galloway warns that a legal battle in upstate New York is threatening that tradition.
Greece, a town of 94,000 residents outside of Rochester, has opened its board meetings with a prayer since 1999. In May, the U.S. Court of Appeals for the Second Circuit found that these invocations violate the establishment clause in their current form. Alliance Defending Freedom, a Christian legal organization, argues in its brief that this ruling misinterprets Marsh‘s 30-year precedent.
Greece has had a policy under which any citizen of any or no religion could lead a prayer at its monthly board meetings. But through 2007, every volunteer was from the Christian clergy, a scenario that Brett Harvey, senior counsel at Alliance Defending Freedom, called a "product of demographics." The town’s religious organizations are primarily Christian, and employees would solicit prayer leaders by calling congregations listed in a local directory.
In 2008, residents Susan Galloway and Linda Stephens sued Greece and its supervisor. Since that year, a Wiccan priestess, a leader of a Baha’i congregation and a lay Jewish man have given the invocations in addition to Christian officials.
The Second Circuit reasoned that the prayers in Greece were unconstitutional because they had the effect of endorsing Christianity. The court emphasized that most of the offerings used "uniquely Christian language."
Harvey argues that the Second Circuit’s use of the so-called "endorsement test" disregards Marsh, which had rejected that type of analysis in legislative prayer cases.
Under Marsh, the invocations are constitutional unless the government acts with an improper motive in choosing prayer givers or uses the offerings to proselytize or disparage a particular faith, Harvey wrote.
"The crux of our argument is that Marsh was pretty clear," Harvey said. "Unless there was some evidence that the government has exploited the prayer opportunity, the content is not important."
Alliance Defending Freedom, based in Scottsdale, Ariz., has a network of more than 2,200 attorneys that work on such issues as challenging abortion and same-sex marriage and defending public prayer. The organization has represented Greece through the Second Circuit appeal, and got help from the Washington office of Gibson, Dunn & Crutcher on the petition. Thomas Hungar, co-chairman of that firm’s appellate and constitutional law groups, is counsel of record.
The petition has generated amicus support, including a brief by 18 state attorneys general that Harvey said "reinforces the fact that there’s a significant federal question at stake."
Another amicus brief came from the Reverend Robert E. Palmer, the Presbyterian minister whose prayers were at issue in Marsh. Palmer was a paid chaplain for the Nebraska Legislature, and delivered invocations there for about 16 years.
In its decision in Greece, the Second Circuit highlighted dicta from County of Allegheny v. ACLU that suggested that Palmer’s prayers were only acceptable because he had removed references to Christ from them.
Palmer argues that this dicta was wrong because his prayers from the Marsh record were clearly Christian in nature. He also warns that decisions like Greece could dilute his case’s holding and deter towns from conducting the invocations.
"He was motivated to both set the record straight and defend the rights of conscience of those people who would deliver prayer," Harvey said of Palmer, whom Alliance Defending Freedom had approached about writing the amicus brief.
Harvey’s brief argues that Allegheny and its endorsement test also should not control because that case was about the public display of a crèche and not legislative prayer.
Harvey explained that since a Fourth Circuit decision misread Allegheny in 2004, there have been close to 20 federal lawsuits about the topic. There also is a three-way circuit split that he worries is threatening the prayer tradition and burdening the free-speech rights of private citizens.
"If the founders can deliver an invocation consistent with the dictates of their own conscience, then legislative bodies today should be able to do the same thing," he said. "The words of the Constitution haven’t changed."
Jamie Schuman is a freelance writer and third-year student at The George Washington University Law School.