by Gary Taylor
Town of Greece v. Galloway
(United States Supreme Court, May 5, 2014)
Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. The Town did not preview or approve the prayer in advance. Susan Galloway and other citizens who attended meetings to speak on local issues objected on the grounds that Christian themes pervaded the prayers to the exclusion of citizens who did not share those beliefs. In response, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted an opportunity to give the invocation. Galloway proceeded to file suit, alleging that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God.” The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town’s congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The Town of Greece appealed to the U.S. Supreme Court.
Writing for the 5-4 majority, Justice Kennedy began by observing that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Looking back in history, the Court noted that the First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses of Congress have maintained the office virtually uninterrupted since then. There is also historical precedent for the practice of opening local legislative meetings with prayer as well. Past Supreme Court cases have held that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” Thus, any application of the Establishment must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.
The Court concluded that Galloway’s insistence on nonsectarian prayer is not consistent with this tradition. The Nation’s history and tradition have shown that prayer in the limited context of opening legislative activity could “coexis[t] with the principles of disestablishment and religious freedom.” The “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” To hold that invocations must be nonsectarian
would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer’s 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 when invocations have been addressed to assemblies comprising many different creeds. The prayers impart the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in the town of Greece may have invoked the name of Jesus, but they also invoked universal themes, by calling for a “spirit of cooperation.” 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 particular prayer will not likely establish a constitutional violation. 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.