Supreme Court to Decide Town Prayer Case

The Supreme Court has agreed to hear a case that strikes at the heart of one of the many culture wars in American society: the separation of church and state. The Justices will decide whether the Constitution allows a community in upstate New York to open its town board meetings with religious prayer.

This case invokes the Establishment Clause of the First Amendment, which states that “Congress shall make no law respecting an establishment of religion.” Court decisions have extended this language to state and local governments. The Supreme Court has also said that this provision goes beyond the creation of a national religion. It also prohibits the government from advancing or inhibiting religion or excessively entangling the government in religion. There is no clear way to apply these standards, which is why Establishment Clause cases are so controversial, especially in a religious society like the United States.

Town of Greece v. Galloway

In the case that the Supreme Court has accepted for review, Town of Greece v. Galloway, the Town Board in 1999 decided to invite local clergy to offer a prayer at the start of its meetings. The Board allowed adherents of any religion, including atheists, to give an invocation, although it did not publicize that policy. In practice, however, Christian clergy members have delivered nearly all the prayers. Most of the prayers contain uniquely Christian language, making reference to Jesus Christ or the Holy Spirit.

Christian prayer dominated the religious invocations because of the way that the town implemented its prayer policy. A town employee would contact the organizations listed in the town’s “Community Guide,” a publication of the local Chamber of Commerce. Until 2008, this list contained only Christian organizations and clergy. This reflected the realities of the community: religious congregations in the town are predominantly Christian. While the town is home to a Buddhist temple and several Jewish synagogues are situated just outside the town, they are not listed in the “Community Guide.” Accordingly, since the Town of Greece is a predominantly Christian community, nearly all of the religious invocations were Christian.

While school-sponsored prayer was ruled unconstitutional in the early-1960s, the Supreme Court in 1983 ruled in Marsh v. Chambers that the Nebraska legislature could open its sessions with a prayer delivered by a state-employed clergy. The Court noted the “unique history” of legislative prayer in the United States, i.e., the first Congress appointed paid chaplains and opened its legislative sessions with prayer. But while prayer at the start of legislative sessions does not necessarily violate the Establishment Clause, the Court held in Marsh that it was legal in Nebraska because “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or disparage any other, faith or belief.” In 1989, the Court stated that legislative prayers cannot “have the effect of affiliating the government with any one religious belief.”

The Galloway case went to the Second Circuit Court of Appeals in Manhattan, which ruled that the Town of Greece’s legislative prayer practices violated the Establishment Clause. In resolving the case, the Court of Appeals reviewed the patchwork of cases handed down from the Supreme Court over the last few decades in interpreting the Establishment Clause. The Second Circuit arrived at the following legal test: “We must ask…whether the town’s practice, viewed in its totality by an ordinary, reasonable observer, conveyed the view that the town favored or disfavored certain religious beliefs. In other words, we must ask whether the town, through its prayer practice, has established particular religious beliefs as the more acceptable ones, and others as less acceptable.”

Under this approach, the Court of Appeals held that the Town of Greece violated the Constitution because the practical effect of its prayer practice virtually ensured a Christian viewpoint. The Court reasoned: “Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice and nearly all of the prayers thereafter. In the town’s view, the preponderance of Christian clergy was the result of a random selection process. The randomness of the process, however, was limited by the town’s practice of inviting clergy almost exclusively from places of worship located within the town’s borders. The town fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town. Such residents may be members of congregations in nearby towns or, indeed, may not be affiliated with any congregation. The town is not a community of religious institutions, but of individual residents, and, at the least, it must serve those residents without favor or disfavor to any creed or belief.”

The Supreme Court agreed to hear this case in May 2013. The Court turns down thousands of cases each year, hearing between 75 and 80 cases. The Court most likely took this case because it has rarely weighed in on the legality of legislative prayer sessions. It has been 30 years since Marsh v. Chambers. This promises to be a difficult and emotional case for the Court. While Marsh will certainly provide guidance on the issue, each case has its own twists. None of the current Justices were even on the Court when Marsh was decided. Modern Justices have a way of reinterpreting old precedents.

A Murky Establishment Clause

The text of the Establishment Clause provides no guidance as to how the courts should interpret it. A myriad of court rulings over the years in specific factual contexts have yielded complex legal standards governing the resolution of these disputes. The Galloway case provides no easy answers. On one hand, the town’s policy did not favor one religious denomination over another, but the practical effect of the town’s approach did favor Christian prayer, because the religious speakers in this predominantly Christian community were chosen almost exclusively from within the town’s borders. The Court has never decided a case like this.

On a variety of issues, the Supreme Court is as divided ideologically as the American population. This is certainly true on religious issues. An example of this is the Court’s muddled doctrine on religious displays on public property. In 1989, the Court decided whether a municipality could display a nativity scene at the county courthouse and a Chanukah menorah on city property near a Christmas tree. A divided court said the nativity scene was unconstitutional because of its obvious religious implications. But the menorah—despite its religious symbolism—was not unconstitutional because of its placement near a Christmas tree. The Court noted that Christmas and Chanukah are part of the same winter holiday season, which has attained secular status in American society.

In 2005, the Court ruled that the placement of the Ten Commandments at the Texas State Capitol did not violate the Establishment Clause. While the Commandments have religious significance, the Court stated that “such acknowledgments of the role played by the Ten Commandments in our Nation’s heritage are common throughout America.” That same day, however, the Court held in a different case that the placement of the Ten Commandments at two county courthouses in Kentucky was unconstitutional because the evidence showed that the government had a religious purpose in situating the Commandments there. The Texas and Kentucky cases were each 5-4 decisions. Justice Stephen Breyer was the swing vote in each case.

The Ten Commandments cases show how complex and confusing the Supreme Court’s Establishment Clause cases have been on an ideologically-divided Court that often spars over threshold issues such as what legal standard to apply in these disputes. In 1971, the Court devised the “Lemon test” to assist in deciding whether government-sponsored religious activity or legislation violates the Establishment Clause. Devised in Lemon v. Kurtzman, this standard holds that the activity must have a secular purpose, must not have the primary effect of advancing or inhibiting religion and cannot result in excessive entanglement with religion. Since that time, conservative Justices have tried without success to abandon the Lemon test, with Justice Antonin Scalia famously comparing the Lemon test to a horror-movie zombie that refuses to die.

Attempts by the conservatives to lower the barrier separating church and state have produced some awkward and angry moments. In 1994, the Court held that a public school district in upstate New York specifically created for Hasidic schoolchildren violated the Establishment Clause. The district’s boundaries were drawn specifically to serve the religious population. The result in this case, Kiryas Joel Village School District v. Grumet, seemed obvious. As Justice David Souter wrote, the creation of this district violated the requirement of governmental neutrality toward religion because it singled out a religious sect for special treatment. Yet, the three most conservative Justices on the Court at the time—Justices William H. Rehnquist, Antonin Scalia, and Clarence Thomas—dissented, arguing that the decision was “astounding” and reflected “a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation’s tradition of religious toleration.”

Even more eye-popping is Justice Thomas’s views on the Establishment Clause. He argues that it should not protect individual rights. Rather, under his interpretation, the Establishment Clause should only prevent the federal government from interfering with state religious establishments. This approach would repudiate decades of Establishment Clause case law. No one else on the Court agrees with Justice Thomas on this issue, which he outlined in the case that challenged the constitutionality of the Pledge of Allegiance, Elk Grove School District v. Newdow, which the Court ultimately resolved on procedural grounds without deciding whether the Pledge was unconstitutional.

Most recently, the Court was divided on whether taxpayers could challenge a governmental policy that allowed tax credits for donations to “student tuition organizations” that limited their scholarships to religious schools. In that case, Arizona Christian School Tuition Organization v. Winn (2011), the 5-4 majority said the plaintiffs had no standing to even bring the lawsuit. The Justices said this case was unlike a 1968 ruling, Flast v. Cohen, that allowed taxpayers to challenge the expenditure of government funds on religious schools. In a scathing dissent, Justice Elena Kagan said that the issues in Winn and Flast were virtually identical and that the five conservatives in the Winn majority had engaged in legal sophistry, as “cash grants and targeted tax breaks are means of accomplishing the same government objective—to provide financial support to select individuals or organizations.”

A Close Call

The Galloway case pro- mises to be as divisive as the other cases decided by the Court under the Establishment Clause. The conservatives on the Court will likely emphasize that the Town of Greece’s policy is neutral as to which religious denominations may offer prayer at town meetings. That fact will support their view that the town is not endorsing or disavowing any particular religious sect. As the Second Circuit Court of Appeals stated in ruling against the town, “We ascribe no religious animus to the town or its leaders. The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years.” The liberals on the Court will likely examine the real-life application of the town’s facially-neutral policy and focus on the very next sentence in the Second Circuit’s opinion: “But when one creed dominates others—regardless of a town’s intentions—constitutional concerns come to the fore. There is no doubt that the town seeks to convey respect for the invocations given at its meetings. But efforts to show respect for a belief espoused in a legislative prayer entail a concomitant obligation to demonstrate respect for the beliefs of others.”


 Stephen Bergstein is a civil rights attorney in upstate New York.