This October, the Supreme Court will hear arguments in Town of Greece v. Galloway, a case that could change the way we deal with, among other things, invocation prayers at city council meetings. It’s the first time in 30 years that the Supreme Court will consider a case dealing with legislative prayers. There are a lot of details to the case, leading to some underreporting and some misreporting, so I’m hoping this post offers a thorough, easy-to-understand summary of what’s going on so we know what’s at stake and why this is such an important case.

The Background:

Before 1999, the Town Board of Greece, New York opened its meetings with a moment of silence.

After 1999, at the insistence of Town Supervisor John Auberger, the meetings began with a prayer. Nearly all of those prayers were delivered by Christian clergy members. Furthermore, unlike other city councils, there was no requirement that the prayers be inclusive or non-denominational.

How did town officials select speakers? They used a list of local religious leaders provided by the Greece Chamber of Commerce… which, not surprisingly, was full of Christians. City officials later argued that they didn’t purposely try to exclude atheists (and Pagans and Wiccans and Hindus, etc) — they just didn’t have them on the list.

From 1999 through 2007, Christians delivered every single invocation prayer.

In February of 2008, with the help of Americans United for Separation of Church and State, town residents Susan Galloway (who’s Jewish) and Linda Stephens (who’s an atheist) filed a lawsuit against the Town Board and Auberger. They argued that these prayers violated the Establishment Clause of the Constitution and promoted Christianity.

Once they spoke up, the town invited non-Christians to deliver invocation prayers at four of its next twelve meetings. But starting in 2009 till mid-2010 (when the case was being decided), the invocations went back to being entirely Christian.

(It’s still going on in 2013, by the way:)

The Initial Lawsuit:

The argument for the Galloway side was twofold.

1) They said the town’s procedure for choosing invocation speakers unfairly preferred Christians over non-Christians.

2) They said the prayers were unconstitutionally “sectarian,” meaning they promoted specific beliefs about God instead of being more general and inclusive. In other words, they named “Jesus” in the prayers instead of just a generic “God” that could apply to more people.

District Court Judge Charles J. Siragusa ruled that, while Galloway and Stephens had the right to sue, their side failed to prove that Greece officials were intentionally excluding non-Christians. Furthermore, he didn’t seem to care about the sectarian nature of the prayers, saying that they didn’t “establish” Christianity like the plaintiffs were arguing.

The Appeal:

When Americans United appealed Siragusa’s decision, they focused on just the second argument: That the prayers were unconstitutionally sectarian and effectively “established” religion.

In May of 2012, the United States 2nd Circuit Court of Appeals unanimously ruled in Galloway and Stephens’ favor, with Judge Guido Calabresi writing:

We conclude, on the record before us, that the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint. 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. We emphasize that, in reaching this conclusion, we do not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case.

The totality bit is important because it means the court recognized that Greece officials (at least in theory) would’ve welcomed invocation speakers who weren’t Christian; they just never sought them out as they did Christian ones, nor did they announce publicly that they would accept non-Christian invocation speakers.

The court added (problematically, in my opinion) that sectarian prayers probably would have been fine as long as the speakers weren’t just Christian. So in addition to prayers to Jesus, the city would have to allow prayers to Allah, prayers to Buddha, etc.

Overall, though, they ruled that Greece was promoting Christianity:

… 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 the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion.

To conclude, the judges made a few clarification statements:

They weren’t opposed to non-denominational invocations at city council meetings.

They weren’t even opposed to sectarian prayers, as long as it was made clear that these were the speakers’ beliefs and not representative of the town, and as long as non-Christians were also allowed to deliver them.

The Aftermath:

The Christian group Alliance Defending Freedom, unhappy with the Court of Appeals’ ruling, asked the Supreme Court to give this case another look. As with all similar challenges, this was a longshot since the Court hears less than 1% of cases it’s asked to look at. But you can try and make your case to the justices as to why they ought to hear you out (“petition for writ of certiorari”). You can get your allies to make the case, too (via amicus briefs). And if four of the nine justices are interested, they’ll hear your case.

Amicus briefs followed from the likes of Rev. Dr. Robert E. Palmer (the Presbyterian chaplain whose prayers were the subject of a Supreme Court case from 30 years ago — see “Precedents” section below), three Arizona state representatives, 49 members of the U.S. House of Representatives (all Republicans except for Rep. Mike McIntyre), a group of “theologians and scholars”, and officials from 18 states.

This past April, Americans United filed a brief opposing the idea that the Supreme Court should hear this case — they said it was already resolved by the Court of Appeals. And a rebuttal brief from Greece representatives followed weeks later, asserting that the case really wasn’t settled yet and the Supreme Court really did need to give this case another look.

The Supreme Court:

In May, after taking into account all those briefs, the Supreme Court granted certiorari to the case, meaning they would make the final judgment on the case:

As supporters of church/state separation, we want them to let the Court of Appeals’ ruling stand, though the fact that they took on the case, coupled with the conservative makeup of the current court, means there’s plenty of reason to be worried.

The Big Question:

The Supreme Court will now have to answer this question: Knowing that Greece officials didn’t openly discriminate against non-Christians or purposely use the prayers as a tool for proselytization, was it still unconstitutional of them to have all those Christian invocation speakers? (Doesn’t that give the impression that they’re promoting a particular religion and faith over no-faith?)

Or, in legalese, they’ll consider:

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Precedents:

As with all Supreme Court arguments, the lawyers on both sides will refer to previously-decided cases in the hopes that they’ll convince the justices that this is already a settled matter.

Two cases in particular deal with religion and government officials and are worth examining.

The last time the Supreme Court ruled directly on legislative prayers, it was 30 years ago in Marsh v. Chambers (1983). Ernie Chambers was (and still is) a state senator from Nebraska and he sued the state over the fact that legislative sessions began with a non-denominational invocation prayer offered by a state-funded chaplain (the aforementioned Rev. Dr. Robert E. Palmer).

Chambers, who has since come out as an atheist, ended up losing the case in the Supreme Court on a 6-3 decision. Chief Justice Warren Burger wrote in his majority opinion:

In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

The Court said paid chaplains and non-denominational prayers were fine because the whole practice was part of our nation’s history: Hell, the Founding Fathers themselves authorized the appointment of paid chaplains when they wrote the First Amendment. If they didn’t think it violated the First Amendment, then we shouldn’t think it violates the First Amendment, the argument went. It was originalism on steroids. The Court allowed such prayers as long as speakers didn’t proselytize and the government wasn’t disparaging or advancing a particular faith.

Justice Anthony Kennedy, the potential swing vote this time around, wasn’t on the bench in 1983 to decide this case.

Six years later, in County of Allegheny v. American Civil Liberties Union, the Supreme Court suggested that sectarian prayers were indeed unconstitutional when they ruled that a Nativity Scene (and nothing else) inside a county courthouse basically promoted Christianity. Even “tradition” didn’t allow for that kind of blatant religious endorsement. This was not a clear-cut decision, though.

While five justices found the Nativity Scene unconstitutional, Kennedy thought it was just fine, arguing that if we allow invocation prayers, we must allow religious displays, too:

If Marsh… allows Congress and the state legislatures to begin each day with a state-sponsored prayer offered by a government-employed chaplain, a menorah or creche, displayed in the limited context of the holiday season, cannot be invalid. The facts that, unlike the creche in Lynch, the menorah and creche at issue were both located on government property and were not surrounded by secular holiday paraphernalia are irrelevant, since the displays present no realistic danger of moving the government down the forbidden road toward an establishment of religion.

If you’re the lawyers for the town of Greece, you like this ruling. You can make the case that invocation prayers are legal as long as you’re not discriminating when choosing speakers and you’re not openly trying to proselytize. And if your speakers just happen to all be Christian, oh well…

If you’re the lawyers for Galloway and Stephens, you’d argue that having only one religious faith represented in such invocations is tantamount to an endorsement of that religion. Indeed, the United States 4th Circuit Court of Appeals ruled in 2011 that it was unconstitutional for the Forsyth County (North Carolina) Board of Commissioners to open their meetings with predominantly Christian invocations:

… invocations must consist of the type of nonsectarian prayers that solemnize the legislative task and seek to unite rather than divide. Sectarian prayers must not serve as the gateway to citizen participation in the affairs of local government. To have them do so runs afoul of the promise of public neutrality among faiths that resides at the heart of the First Amendment’s religion clauses.

It’s also important to note that there’s a difference between invocation prayers you hear in Congress (which you’re not really pressured to participate in) and prayers you hear at your local city council meeting (where the pressure is strong). The Galloway side will undoubtedly argue that it’s important at local levels for invocation prayers to be non-denominational, non-sectarian, and inclusive of everyone.

Two other cases involving prayer and government entities may also come into play.

In Lee v. Weisman (1992), the Court ruled 5-4 that school officials could not invite religious representatives to deliver prayers at school functions, even if the prayers were non-denominational. Justice Kennedy wrote the decision for the majority (a good sign for our side):

What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. … We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position.

How does that apply here? Well, those prayers were ruled unconstitutional because the pressure on students to participate was strong… and you could argue that same sort of pressure is evident at Greece city council meetings even if we’re talking about adults.

In Santa Fe Independent School Dist. v. Doe (2000), the Court ruled 6-3 that formal student-led, student-initiated prayers at school events (like football games) were also unconstitutional. Kennedy was in the majority here as well, concurring with Justice John Paul Stevens, who wrote:

The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual.

You could say that having formal prayers at school events pressures students into participating, just as the prayers do in Greece. If the Court said it was wrong 13 years ago, they should say it’s wrong now, too.

Preparing for the Oral Arguments

On July 26, the Town of Greece filed its official brief with the Court. Their argument is that the Marsh decision was right when it allowed invocations as a continuation of our country’s religious traditions and that their prayers were offered in the same mold:

To be sure, a majority of prayer-givers were Christian… But that fact does not support the conclusion that the Town exploited the prayer opportunity to proselytize or to advance or disparage any faith. Indeed, the Marsh Court refused to take that inferential leap even though the prayer-giver in that case was from a single Christian denomination and offered the State’s often explicitly Christian prayers for sixteen consecutive years.

Once again, the amicus briefs in support of Greece are rolling in. There are already about two dozen as I write this, but they include ones representing:

34 U.S. Senators ( Sen. Mary Landrieu is the only Democrat)

is the only Democrat) 85 members of the House of Representatives. The brief calls it a “bipartisan” group, though it should be noted that 84 of the 85 signers are Republicans. Once again, Rep. Mike McIntyre is the sole Democrat.

(Very notably) the Obama administration.

The official and amicus briefs for the Galloway side have not yet been filed; they have until mid-September to do so.

The Possible Ramifications:

The Greece side wants the Court to stop considering the endorsement of religion in legislative prayers (like when you have almost all Christian invocations) and focus on the coercive nature of them. So if the speakers aren’t openly proselytizing in their prayers, we shouldn’t worry about them.

If the Court agrees (in a broad, far-reaching ruling), we’d be kissing goodbye to nearly six decades of Establishment Clause precedent. This would be disastrous, opening the door to Christian invocation prayers at city council meetings — and even school board meetings — all across the country.

In theory, the Court could also rule (broadly) that legislative prayers are unconstitutional everywhere (though this is very unlikely to happen). If that happened, it would also put a stop to Congressional invocations, as noted by the House of Representatives members’ original amicus brief:

… Congress’ longstanding legislative prayer practice violates all three factors utilized by the Second Circuit [in the Court of Appeals ruling]. The overwhelming majority of congressional prayers — 97% — are offered by Christians. The majority of these prayers include identifiably Christian content, including references to Jesus, the Holy Spirit, salvation, and Bible verses, such that they would be deemed overwhelmingly sectarian and therefore unconstitutional. And almost all of these prayers from the 112th Congress — again 97% — use first-person plural pronouns. … … Unless Congress has been violating the Constitution since its ratification, the Second Circuit’s test is error. … … The Second Circuit’s holding would thus invalidate Congress’ longstanding practice.

On the other hand, the Could may rule narrowly so that its decision, one way or the other, applies only to Greece. Given the conservative bent of the Court, this may not be such a bad outcome, but it would leave a lot of questions unanswered and lead to more court challenges in the future.

What do I think will happen?:

Who knows.

It could be a 5-4 decision with Justice Kennedy offering the swing vote, but I can’t even say which way. The conservative bloc on the court has said that the Establishment Clause is only violated if you’re being coerced/pressured into participation. Kennedy, unfortunately, seems to agree with this line of reasoning.

If you’re on the church/state separation side of things, though, you’re not really thinking about coercion. You’re thinking about the principle of this issue. You see Christian prayer after Christian prayer after Christian prayer at these city council meetings and believe that’s enough to constitute an illegal establishment of Christianity, whether or not anyone is pressured into participating. You hope the Court (read: Kennedy) sees it that way, too.

If the coercion argument wins out, it’ll mark a major crumbling of the wall between church and state.

…

I’ll be updating this post over the next month as the Galloway side and its supporters file their briefs.



