Town of Greece, N.Y. v. Galloway, 134 S.Ct. 1811 (2014)
By a 5-4 vote, the United States Supreme Court has ruled that the practice of opening city council meetings with prayer does not offend the United States Constitution, even though most of the persons offering prayers were Christian ministers and many of the prayers contained references to Christian doctrine. This article will review the facts of the case, and explain the Court’s ruling.
Greece, a town with a population of 94,000, is in Upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, the town supervisor would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, the supervisor would thank the minister for serving as the board’s “chaplain for the month” and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures.
The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town eventually compiled a list of willing “board chaplains” who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were, too.
The town neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe the ministers’ constitutional rights of free speech and the free exercise of religion. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often contained both civic and religious themes. Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community. A typical prayer stated:
Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility … . Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen.
Two citizens (the “plaintiffs”) attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, one of the plaintiffs admonished board members, saying she found the prayers “offensive,” “intolerable,” and an affront to a “diverse community.” After the plaintiffs complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation.
The plaintiffs filed a lawsuit in a federal district court in New York, claiming that the town violated the First Amendment’s prohibition of an establishment of religion by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given “in Jesus’ name.” They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God” and would not associate the government with any one faith or belief.
The district court upheld the prayer practice as consistent with the First Amendment. It found no impermissible preference for Christianity, noting that the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths. The court found no authority for the proposition that the First Amendment required the town of Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity.
The court also rejected the theory that legislative prayer must be nonsectarian. It concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It found no requirement in the Constitution that prayers be purged of sectarian content. In this regard, the court quoted recent invocations offered in the U.S. House of Representatives “in the name of our Lord Jesus Christ,” and found such prayers part of a longstanding tradition.
A federal appeals court reversed the district court’s ruling, and found the town’s practice of opening council meetings with prayer violated the Constitution’s ban on any “law respecting an establishment of religion.” The appeals court concluded that some aspects of the prayer program conveyed the message that Greece was endorsing Christianity. The town’s failure to promote the prayer opportunity to the public, or to invite ministers from congregations outside the town limits, all but “ensured a Christian viewpoint.” Although the court found no inherent problem in the sectarian content of the prayers, it concluded that the “steady drumbeat” of Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town with Christianity. Finally, the court found it relevant that guest clergy sometimes spoke on behalf of all present at the meeting, as by saying “let us pray,” or by asking audience members to stand and bow their heads:
The invitation … to participate in the prayer … placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation. That board members bowed their heads or made the sign of the cross further conveyed the message that the town endorsed Christianity.
The United States Supreme Court agreed to review the appeals court’s ruling that required the town to cease its prayer policy.
The Supreme Court’s ruling
The Supreme Court began its opinion by referring back to its 1983 decision in Marsh v. Chambers, 463 U.S. 783 (1983). In the Marsh case, the Court found no First Amendment violation in the Nebraska unicameral legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the First Amendment’s Establishment Clause.
In Marsh, the Court concluded that history supported the conclusion that legislative invocations are compatible with the Establishment Clause:
The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent … . In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.
The Court concluded that the Marsh case teaches that “the Establishment Clause must be interpreted by reference to historical practices and understandings”:
That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion’s role in society. In the 1850s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer; no faith was excluded by law, nor any favored; and the cost of the chaplain’s salary imposed a vanishingly small burden on taxpayers.
Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change … . A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.
The issue in the town of Greece case, then, was “whether the town’s prayer practice fits within the tradition long followed in Congress and the state legislatures.” The plaintiffs insisted that the town’s prayer policy fell outside that tradition and therefore violated the Establishment Clause for two reasons. First, they claimed that Marsh did not approve prayers containing sectarian language or themes, such as the prayers offered in Greece that referred to the “death, resurrection, and ascension of the Savior Jesus Christ,” and the “saving sacrifice of Jesus Christ on the cross.” Second, they argued that the setting and conduct of the town board meetings created social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsored the prayer and would vote on matters citizens bring before the board. The plaintiffs claimed that prayer must be nonsectarian, or not identifiable with any one religion; and they faulted the town for permitting guest chaplains to deliver prayers that “use overtly Christian terms” or “invoke specifics of Christian theology.” A prayer is fitting for the public sphere, in their view, only if it contains the “most general, nonsectarian reference to God,” and eschews mention of doctrines associated with any one faith.
The Supreme Court rejected this analysis, noting that “an insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases.” To illustrate, the Court found the prayers in Marsh consistent with the First Amendment:
not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could coexist with the principles of disestablishment and religious freedom. The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking “the grace of our Lord Jesus Christ.” The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds … .
[The Court in Marsh did not] imply that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed. To the contrary, the Court instructed that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
The Court noted that requiring invocations to be nonsectarian “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” To the contrary, “our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior.” The Court continued:
The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition. These religious themes provide particular means to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief” … . Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.
The Court concluded that the prayers delivered in the town of Greece did not fall outside the tradition that it had recognized in prior cases. A number of the prayers “did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, such as celebrating the changing of the seasons or calling for a spirit of cooperation among town leaders.” Among numerous examples of such prayer in the record is the invocation given by the Rev. Richard Barbour at the September 2006 board meeting:
Gracious God, you have richly blessed our nation and this community. Help us to remember your generosity and give thanks for your goodness. Bless the elected leaders of the Greece Town Board as they conduct the business of our town this evening. Give them wisdom, courage, discernment and a single-minded desire to serve the common good. We ask your blessing on all public servants, and especially on our police force, firefighters, and emergency medical personnel. … Respectful of every religious tradition, I offer this prayer in the name of God’s only son Jesus Christ, the Lord, Amen.
In rejecting the appeals court’s view that the town of Greece violated the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer, the Supreme Court observed: “The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.” Further, “the quest to promote a diversity of religious views would require the town to make wholly inappropriate judgments about the number of religions it should sponsor and the relative frequency with which it should sponsor each, a form of government entanglement with religion that is far more troublesome than the current approach.”
The Court rejected the plaintiffs’ claim that the town’s prayer practice “coerced participation by nonadherents” since the public may feel “subtle pressure to participate in prayers that violate their beliefs in order to please the board members from whom they are about to seek a favorable ruling.” The Court, again, disagreed:
The prayer opportunity in this case must be evaluated against the backdrop of historical practice. As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of “God save the United States and this honorable Court” at the opening of this Court’s sessions. 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, not to afford government an opportunity to proselytize or force truant constituents into the pews. That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content.
The Court concluded:
In the town of Greece, the prayer is delivered during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating. By inviting ministers to serve as chaplain for the month, and welcoming them to the front of the room alongside civic leaders, the town is acknowledging the central place that religion, and religious institutions, hold in the lives of those present. Indeed, some congregations are not simply spiritual homes for town residents but also the provider of social services for citizens regardless of their beliefs. The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers.
Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.
The Supreme Court concluded that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” The fact that “the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment” demonstrated that “the Framers considered legislative prayer a benign acknowledgment of religion’s role in society.”
This same principle tends to validate the constitutionality of a wide range of accommodations of religious practice that have been unchallenged for long periods of time. Examples include:
- chaplains employed by the United States Congress;
- chaplains employed by state legislatures;
- chaplains employed by the United States military;
- chaplains employed by federal and state prisons;
- prayers at patriotic and civic events;
- federal and state income tax exemption for churches;
- sales tax exemptions for churches;
- property tax exemptions for churches;
- unemployment tax exemption for churches;
- the parsonage allowance for clergy (established in 1921);
- the housing allowance for clergy (established in 1954);
- preferential zoning classification for churches;
- the religious services exemption under the Copyright Act; and
- the church exemption under federal and state employment discrimination laws.
The Supreme Court also stressed that prayers at the beginning of legislative sessions need not be limited to innocuous and generic references to a deity. Clergy are free to make explicit references to their own religion, including prayers in the name of Jesus, so long as the opportunity to offer prayers is open to all religions represented in the community and prayers do not overtly proselytize.