Workplace Issues: Town’s practice violated Establishment Clause

Lindy Korn

The Town of Greece started off its Town Board meetings from 1999 to 2010, with religious prayers that the public was invited to give, but the public did not know this, as the town did not have a public policy, which was publicized. Instead, the Town Board selected candidates for prayer by contacting houses of worship within the town.

The problem is that religious congregations in the town were primarily Christian, and as such the Town’s process for selecting prayer-givers ensured a Christian viewpoint. The Court of Appeals cites Marsh v. Chambers, 463 U.S. 783,795 (1983):

“We need not embark on a sensitive evaluation or parse the content of a particular prayer, to recognize that most of the prayers at issue here contain uniquely Christian references and that prayers devoid of such references almost never employed references unique to some other faith.”

The court here held that the “totality of the circumstances” presented the town’s prayer practice identified the town with Christianity in violation of the Establishment Clause. Further the court stated that “when one creed dominates others — regardless of a town’s intentions-constitutional concerns come to the fore,” Galloway v. Town of Greece, 10-3635-cv, May17.

The court also deemed it relevant that most prayer-givers appeared to speak on behalf of the town and its residents, rather than on behalf of themselves. They would request that the audience participate in the prayer. In addition, the town supervisor would sometimes thank them for being “our chaplain of the month.” The inference here is that someone in the audience would think that the prayer-givers are speaking on behalf of the Town Board.

The narrow issue on appeal was whether the town’s prayer practice had the effect of establishing religion, and the Court of Appeals use of the Totality of the Circumstances test found the answer to be so:

“What we do hold is that a legislative prayer practice that, however well intentioned, conveys to a reasonable objective observer under the totality if the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that the town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”

Thus, the appearance of religious affiliation resulted in the reversal of the district court’s grant of summary judgment.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 856-KORN (5676).