Town of Greece v. Galloway: Prayers debated in prelude to SCOTUS

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It has been 30 years since the U.S. Supreme Court has reviewed the issue of prayers at government meetings, but it will take another look Wednesday in a case involving the town of Greece.

The particulars — and more — were heard Tuesday by more than 100 people at a panel discussion on “Town of Greece v. Galloway: The Future of Legislative Prayer in America.”

Praying before a government meeting is a time-honored tradition that predates the founding of America, according to Brett Harvey. He was countered by Heather Weaver, who argued everyone, including those who do not say Christian prayers or pray at all, should be allowed to participate in government without being made to feel like a second-class citizen.

Harvey is senior counsel for the Alliance Defending Freedom, an Arizona faith-based organization representing the town of Greece, which began opening its government meetings with a prayer in 1999. Weaver is a senior staff attorney with the American Civil Liberties Union, which has filed an amicus brief supporting Greece residents Susan Galloway and Linda Stephens, who brought suit against the town in 2008, claiming its practice of exclusively using Christian prayers was unconstitutional.

Harvey said the first Continental Congress opened with a prayer in 1774 and that the federal Legislature agreed in 1791 to hire a chaplain to open its sessions with a prayer, three days before the ratification of the First Amendment, which includes the Establishment clause that “Congress shall make no law respecting an establishment of religion …”

Harvey said prayers have been said at government meetings in the more than 200 years since and that the practice was upheld by the Supreme Court in Marsh v. Chambers, 463 US 783 [1983]. In that case, the court found the prayers were constitutional unless the selection of the prayer givers advanced a particular faith or disparaged others.

“What’s this case really about?” Harvey asked. “This case is about who decides how to pray.”

He noted Greece residents are predominantly Christian and that the selection of prayers would likely be different in a city like New York with a different demographic. He said all prayers involve a concept of God and that mandating a generic prayer would establish a generic religion.

Harvey said the opposition’s arguments are couched in inclusivity, but will result in excluding people, particularly devout believers, and would impose on the rights and liberties of people who choose to pray.

Weaver opened with a scenario of what typically happened at Greece town meetings. She asked the audience to picture a board of five members with a chaplain turning the podium toward the audience, asking everyone to bow their heads and “let us pray” and ending with the mention of Jesus.

She asked people to imagine they were Jewish or any number of non-Christian faiths; if they would feel comfortable taking part.

“We believe the First Amendment prohibits the government from forcing that choice on you,” Weaver said, adding government meetings should not open with any prayer at all.

She argued legislative prayer weakens religion by relying on government to promulgate it, that government should not be permitted to dabble in religion and any invocation should be neutral or nonsectarian.

Weaver also objected to supporting legislative prayer as a time-honored tradition. She mentioned a law that affirmed segregation, which was passed not too long after the Fourteenth Amendment guaranteeing equal protection. Segregation, one embraced, is no longer legal.

In addition, Weaver said Greece did not allow anyone to offer a prayer; that prayers were strictly Christian until the town was threatened with a lawsuit in 2008 and four non-Christian prayers were offered that year.

Harvey and Weaver were introduced by Rochester attorney Jeffrey A. Wadsworth, president of the Rochester Lawyers Chapter of The Federalist Society, which sponsored the event at Nixon Peabody LLP offices, along with the Genesee Valley Chapter of the New York Civil Liberties Union and the Monroe County Bar Association.

The two speakers also answered several questions from members of the audience, including Gordon Webster who identified himself as a Presbyterian minister. He asked how people could begin to show respect for each other’s religions, noting there is an increasing number of communities bringing faith communities together. He suggested government participation could help.

Weaver responded the government could show respect by not getting involved and that when it does, it crosses the line to promoting and imposing religion. She also said the Establishment Clause is to protect religious communities to keep government out of them.

“Include people by including them, not silencing them,” said Harvey, adding that respect is shown by giving everyone an opportunity to offer a prayer.

“The town should not be in the business of censoring prayer,” Harvey said.

Weaver said she would encourage governments to abandon prayers because they exclude “a wide swath” of the community which is divisive.

The Genesee Valley Chapter of the NYCLU was represented by Rochester attorney Scott A. Forsyth, its Legal Committee chair, who outlined the case Town of Greece v. Galloway (12-696); and KaeLyn Rich, its director.

The suit, filed on behalf of Galloway and Stephens by Americans United for the Separation of Church and State, is being argued by its legal director, Ayesha N. Khan; and Joel Oster, senior legal counsel, Alliance Defending Freedom.

The case was dismissed in August 2010 by U.S. District Court Judge Charles J. Siragusa for the Western District of New York who found no evidence the town of Greece intentionally excluded non-Christians from offering a prayer; that anyone could offer a prayer and noone was ever rejected.

That decision was overturned on May 17, 2012, by the U.S. Court of Appeals for the Second Circuit, which found the town’s prayer practice endorsed a particular religious viewpoint, that being Christianity.

The town sought certiorari, which was granted on May 20.

The specific question before the U.S. Supreme Court is “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.”

A decision is likely in the spring, although the high court has until its session ends in June to issue its opinion.