Town plans appeal of fed decision on prayers

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The town of Greece can continue having opening prayers at its monthly Town Board meetings, but guidelines will be established as to what will be appropriate.

Two town residents, Susan Galloway and Linda Stephens, sued the town in federal court, claiming its practice limited its invocations to Christianity in violation of the Establishment Clause of the First Amendment, which prohibits the establishment of a national religion or governmental preference of one religion over another.

The U.S. Court of Appeals, which heard arguments in September, on Thursday reversed a lower court’s decision that rejected their claims that the town’s prayer practice affiliated with a single creed, Christianity. The matter was remanded to the district court “to craft the appropriate relief,” with the assistance of the parties.

“This is a wonderful and well-reasoned decision,” said Ayesha N. Khan, legal director of Americans United for Separation of Church and State, which sponsored the litigation. “I was particularly pleased that the ruling was unanimous, despite being issued by a panel of judges with varied perspectives about the law.”

The panel consisted of Judges Guido Calabresi, Richard C. Wesley and Gerard E. Lynch.

The town plans to appeal, according to Joel Oster, senior litigation counsel for the Alliance Defense Fund, which represents the town and its supervisor, John Auberger, who is also named in the suit Galloway v. Town of Greece (Docket No. 10-3635-cv).

“We’re disappointed with the court,” Oster said. “We think the court has effectively overturned the (U.S.) Supreme Court’s decision in Marsh v. Chambers.”

In Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court held the practice of legislative prayer delivered by a state-employed clergy did not violate the Establishment Clause.

Oster said that is one option the town of Greece may consider — hiring its own clergy member.

Since 1999, the town of Greece has invited local clergy to begin its Town Board meetings with a short prayer, the decision states. Galloway and Stephens began complaining in 2007 and brought suit in February 2008 in U.S. District Court for the Western District of New York where Judge Charles J. Siragusa dismissed their claim in August 2010.

Judge Siragusa ruled the town did not violate the Establishment Clause, there was no evidence the town intentionally excluded non-Christians and, citing Marsh, that prayers do not have to be nonsectarian.

The town had no formal prayer policy and never rejected a request to offer prayer. Its intention was to invite representatives of churches or groups within the town, most of which are Christian.

Galloway and Stephens believe prayer is inappropriate at government meetings and that any given should be nonsectarian. After they complained, non-Christians delivered prayers at four of the 12 Town Board meetings in 2008, but between January 2009 and June 2010, when the record closed in the litigation, all the prayer givers were again invited Christian clergy.

On appeal, Galloway and Stephens abandoned their discrimination argument, leaving the only issue of whether the district court erred in rejecting their assertions that the town’s practice had the effect, even if not the purpose, of establishing religion.

“As far as we are aware, this is the first instance in which this court has had occasion to consider the validity of a legislative prayer practice under the Establishment Clause,” the three-judge panel wrote.

They note that Marsh did not employ the three-pronged test the Supreme Court had adopted 11 years earlier in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), but cited the “unique history” of legislative prayer, relying on the fact that the first Congress appointed paid chaplains and opened legislative sessions with prayer.

They also note the high court, six years later, rejected Marsh’s historical analysis in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492, U.S. 573 (1989), when it recognized that history could not justify current practices “that have the effect of affiliating the government with any one specific faith or belief” and that various circuit court decisions since, relying on the language in Allegheny, have “questioned the validity of all forms of ‘sectarian’ prayers.”

Applying that to the town of Greece’s practice, the judges said they could not look solely at whether the town’s legislative prayer practice contained sectarian references, but if viewed in its totality by a reasonable observer, it conveyed the view that the town favored or disfavored certain religious beliefs.

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

The judges ruled the town’s process for selecting prayer givers was limited to inviting clergy almost exclusively from places of worship within the town’s borders, failing to recognize its residents may hold religious beliefs not represented by one of them or that some members may belong to an out-of-town congregation or none at all.

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

It noted the town’s desire to mark the solemnity of its proceedings with prayer is desirable, as Americans have done so for more than 200 years, but that constitutional concerns arise when one creed dominates others.

“Ultimately, municipalities must consider their prayer practices in context and as a whole,” the panel wrote. “A municipality must ask itself whether what it does, in context, reasonably can be seen as endorsing a particular faith or creed over others. That is the difficult balancing act required by the Establishment Clause and its jurisprudence.”

The U.S. Court of Appeals does not say the town cannot open its meetings with a prayer or that they must be nonsectarian, and that occasional prayers that make it clear the town is not endorsing or affiliating itself with a particular creed are not unconstitutional.

The difference with Greece, the decision notes, is that prayer givers often requested audience participation, speaking in the first person plural with terms like let “us” pray, “our savior” and “we” ask with Auberger thanking them for being “our chaplain of the month” and that town officials, often participating in the prayer, intentionally or not, contributed to the impression the prayer givers spoke on the town’s behalf.

The judges say a practice that includes multiple beliefs and makes clear that prayers are presented by a randomly chosen group of volunteers who do not express an official town religion or speak on behalf of the town is compatible with the First Amendment.

“We are very happy with the court’s decision,” said the Rev. Barry W. Lynn, AU’s executive director, in a release. “Government meetings should welcome everyone. When on faith is preferred over others, that clearly leaves some people out.”

Oster called the decision vague and said the Second Circuit is trying to put up so many roadblocks and obstacles that will make it virtually impossible for the town to engage in legislative prayer as allowed by the Supreme Court.

“The Constitution has never required any local government to engage in such gymnastics to have prayer, as clearly seen by the prayers of America’s founding fathers,” Oster said. “Pray givers have a right protected by the First Amendment to engage in speech that reflects their own conscience and religion during such prayers. That does not make the prayers an endorsement by the town itself of any particular religion.

“We think the approach used by the town is even better,” he added. “The town had a totally non-discriminatory practice. No one has ever been denied. It is as open a policy as I have ever seen in all my years (13) as a constitutional attorney.”

Oster expected to first seek an en banc review by the entire Second Circuit before possibly pursuing a writ of certiorari before the U.S. Supreme Court.