A town board’s practice of opening its monthly meetings with prayer impermissibly affiliated the town with the creed of Christianity and ran afoul of the principle of separation of church and state, the U.S. Court of Appeals for the Second Circuit ruled yesterday.

Addressing for the first time the validity of legislative prayer practice under the First Amendment’s establishment clause, the circuit said the Town of Greece’s “process for selecting prayer-givers virtually ensured a Christian viewpoint,” even though the town board on a few occasions out of hundreds allowed invocations by a Jewish layperson, a Wiccan priestess and the chairman of the local Baha’i congregation.

The circuit’s decision in Galloway v. Town of Greece, 10-3635-cv, was guided by Marsh v. Chambers, 463 U.S. 783 (1983), where the U.S. Supreme Court held that the Nebraska Legislature did not violate the establishment clause by opening its sessions with a prayer.

The Marsh court noted that the First Congress opened sessions with prayer and paid chaplains, saying “[c]learly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment.”

The key in Marsh was that the prayer was not seen as endorsing a particular religion.

“To invoke Divine guidance on a public body entrusted with making the laws,” the high court held, is “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”

The Town of Greece began the practice in 1999. All prayer-givers were Christian from 1999 through 2007 and from January 2009 through June 2010, and the “Town Board Chaplain” list contained only Christian organizations and clergy.

It was only after town residents Susan Galloway and Linda Stephens complained in 2008 that the town varied the offerings on four meetings out of the next 12.

When Galloway and Stephens sued, the town’s defense was that anyone may ask to give an invocation, including atheists and the non-religious.

Western District Judge Charles Siragusa (See Profile) granted the town defendant’s summary judgment in 2010.

Galloway and Stephens appealed to the circuit, where Judges Guido Calabresi (See Profile), Richard Wesley (See Profile) and Gerard Lynch (See Profile) heard oral arguments on Sept. 12, 2011.

Writing for the panel, Calabresi said the U.S. Supreme Court in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), a case not involving legislative prayer, “suggested that legislative prayers invoking particular sectarian beliefs may, on the basis of those references alone, violate the Establishment Clause.”

The Allegheny court said legislative prayers may not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.”

In Town of Greece, Calabresi said, “a substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to ‘Jesus Christ,’ ‘Jesus,’ ‘Your Son,’ or the ‘Holy Spirit.’”

“We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint,” he said. “This conclusion is supported by several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials.”

The court was not persuaded by the brief period in which representatives of other religions gave the invocations or by the town’s claim it would have accepted any and all volunteers.

The town “neither publicly solicited volunteers to deliver invocations nor informed members of the general public that volunteers would be considered or accepted, let alone welcomed, regardless of their religious beliefs or non-beliefs,” Calabresi said. “Had the town publicly opened its prayer practice to volunteers in his way, its selection process could be defended more readily as random in the relevant sense.”

While the prayers here were “not offensive in the way identified as problematic in Marsh: they did not preach conversion, threaten damnation to nonbelievers, downgrade other faiths or the like,” Calabresi said the Town of Greece had an “obligation” to consider the perception the Christian prayers created.

“Absent any effort on the part of the town to explain the nature of its prayer program to attendees, the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation cannot overcome the impression, created by a steady drumbeat of often specifically sectarian prayers, that the town’s prayer practice associated the town with the Christian religion,” he said.

Calabresi cautioned that the court was not holding that a town may not open meetings with prayer, and it was not requiring that prayers offered be “blandly nonsectarian.”

“Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed, or, more broadly, with religion or non-religion, are not offensive to the Constitution,” he said.

Ayesha Khan of Americans United for Separation of Church and State argued for the plaintiffs.

Khan said the decision “solidifies” the state of the law.

“The appellate courts are coalescing around a perspective that seems similar and that requires municipalities to be fairly active in ensuring that their prayer complies with the Constitution,” Khan said. “They can’t take a hands-off approach. It does, however, allow them to open with a moment of silence or sectarian prayer. There’s lots of ways to go here that would get them out of any legal thicket.”

Joel Oster of Alliance Defense Fund in Leawood, Kan., who argued for the defendants, said he is weighing whether to ask the full circuit to rehear the case en banc or petition the Supreme Court for a writ of certiorari.

“The prayers here were identical in nature to those offered in Marsh v. Chambers,” Oster said. “The best approach is not to tell people how to pray or who to pray to. The Town of Greece opened it up to everyone—even atheists were allowed. No one has been denied the opportunity to pray in the Town of Greece.”