U.S. Supreme Court: Greece can open meetings with prayer

It is not unconstitutional for the town of Greece to open its Town Board meetings with a prayer, even if the prayer expresses the beliefs of one faith, the U.S. Supreme Court ruled Monday morning in a 5-4 decision in the Town of Greece v. Galloway.

Justice Anthony M. Kennedy, who delivered the majority opinion, wrote the town’s prayer practice does not violate the Establishment Clause, as alleged by town residents Susan Galloway and Linda Stephens.

Justice Kennedy is joined by Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., who found the setting in which the prayer arose and the audience to whom it was directed, the town supervisors, showed the town was not coercing citizens to engage in a religious observance.

“The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the nation’s heritage and tradition,” Justice Kennedy wrote, citing Marsh v. Chambers, 463 US, 783 [1983]. “Respondents’ insistence on nonsectarian prayer is not consistent with this tradition.”

In Marsh, the Supreme Court held government funding for chaplains was constitutional because of the “unique history” of the United States.

“It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens,” Justice Kennedy wrote.

He noted Greece lawmakers did not direct the public to participate, single out dissidents or indicate their decisions might be influenced by a person’s acquiescence in the prayer opportunity.

Justice Clarence Thomas, joined by Justice Antonin Scalia, agreed the town’s prayer practice does not violate the Establishment Clause, saying even if it were properly incorporated against states through the Fourteenth Amendment, “the clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion.”

Justice Elena Kagan disagreed, saying she thought the town’s practice violated the norms of religious equality.

“The practice at issue here differs from the one in Marsh because Greece’s town meetings involve participation by ordinary citizens and the invocations given — directly to those citizens — were predominantly sectarian in content,” she wrote. “Still more, Greece’s board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the town never sought (except briefly when this suit was filed), to involve, accommodate or in any way reach out to adherents of non-Christian religions. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”

Justice Kagan was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Galloway and Stephens brought suit against the town in February 2008 in U.S. District Court for the Western District of New York. They claimed the town 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 high court disagreed; the majority noted the nation has a long tradition of opening legislative meetings with prayer, dating back to the First Congress, which, Justice Kennedy pointed out, voted to appoint and pay official chaplains shortly after approving language for the First Amendment and that there is a historical precedent for opening local legislative meetings with prayer, as well.

“Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause,” Justice Kennedy wrote for the majority.

The town was represented by Alliance Defending Freedom, a nonprofit organization advocating for religious liberty.

Senior Counsel David Cortman said he was thrilled the Supreme Court not only reaffirmed the freedom to pray, but that the Town Board cannot censor what prayers are offered.

“What’s great about this case is it comes out and specifically says there’s nothing wrong with sectarian prayers and it would be hard to even determine what is sectarian,” he said.

Senior Counsel Brett Harvey said the decision affects everybody, addressing legislative prayers at school board meetings and by any municipal board.

“We’re very honored to have represented the town through this process,” he said. “This is a fight that was brought to them. They were sued and they stood up for this.”

Galloway, who is Jewish, and Stephens, an atheist, were represented by Americans for Separation of Church and State, a nonpartisan organization dedicated to preserving church-state separation to ensure religious freedom for all Americans.

“We’re obviously disappointed with the result here,” AU attorney Ayesha N. Khan said of the decision. “We don’t think it captures or addresses the exclusive message that is communicated with these prayers that are specific to Christianity. At the same time, we think the court was wise to reject the other side’s attempt to use the case to throw out decades of Establishment Clause jurisprudence by replacing the governing standard with the coercion test.”

Executive director, the Rev. Barry W. Lynn, issued a press release saying the decision relegated millions of Americans — believers and nonbelievers — to second-class citizenship.

“Government should not be in the business of forcing faith on anyone and now all who attend meetings of their local boards could be subjected to the religion of the majority,” he said.

The town of Greece has been opening its Town Board meetings with a prayer since 1999. Galloway and Stephens first complained in 2007. They believed prayer was inappropriate at government meetings and that any given should be nonsectarian.

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

After Galloway and Stephens 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 litigation, all the invited prayer givers were Christian.

District Court Judge Charles J. Siragusa dismissed Galloway and Stephens’s claim in August 2010, saying there was no evidence the town intentionally excluded non-Christian prayer givers. He also cited Marsh, noting prayers do not have to be sectarian.

The U.S. Court of Appeals for the Second Circuit reversed the lower court’s decision in May 2012, finding the town’s prayer practice affiliated the town with a single creed, Christianity, in violation of the Establishment Clause, see Galloway v. Town of Greece, 681 F. 3d 20. The town appealed.

In reversing the Second Circuit, the majority of the U.S. Supreme Court noted Marsh, sometimes described as “carving out an exception” to the court’s Establishment Clause jurisprudence, must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.

Khan said the majority opinion does not fully recount the facts and that the diversity was very tokenish. She said after her clients complained, the town invited a Jewish layman, the chair of the local Baha’i temple and a Wiccan priestess.

Justice Alito, joined by Justice Scalia, also wrote a separate opinion responding to the dissent. He expressed concern Justice Kagan’s opinion could be taken as a warning that the majority opinion leads to a country in which religious minorities are denied the equal benefits of citizenship.

“Nothing could be further from the truth,” he wrote. “All that the court does today is allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.”

Also named in the suit was then-town Supervisor John Auberger, who implemented the prayer policy in 1999, replacing a moment of silence.

“We gather as the Town Board of the town of Greece, we gather as Americans, we gather as neighbors and we start our meeting with a prayer,” said Bill Reilich, the current town supervisor who was joined by the entire board for a noon press conference.

“And today we have received the affirmation from the United States Supreme Court that this practice can and will continue,” Reilich said, emphasizing the word “will.” He noted earlier in the day, the high court began its public session, as it has for decades, with “God Save the United States and this honorable court.”

“In every legislative body I have personally ever served, the Monroe County Legislature, the New York State Assembly and now as the supervisor of the town of Greece, the meetings have opened with a prayer,” Reilich said in a press release. “As Americans, we are free to pray, we support diversity, we support freedom and we support the Constitution of the United States, where free speech will always prevail.”