March 29, 2015
by John Kaempf

The U.S. Supreme Court recently held that a town can open its board meetings with a Christian prayer without violating the First Amendment

In Town of Greece, New York v. Galloway, 134 Supreme Court 1811 (2014), the U.S. Supreme Court decided whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a Christian prayer.  The Court held that no violation of the U.S. Constitution was shown.

In Greece, a town of 94,000 in upstate New York, monthly town board meetings begin with an invocation by a local clergyman invited by the town supervisor.  “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.”  Id. at 1816.  A minister of any persuasion, even an atheist, could give the invocation, but because nearly all congregations in town are Christian, all of the participating ministers were Christian.  The town did not review the prayers in advance or provide guidance about their content.  “Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community: ‘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.’”  Id.  

The respondents, who attended town board meetings, objected that the prayers violated their religious or philosophical views.  They sued and “alleged that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given ‘in Jesus’ name.’”  Id. at 1817.  (The First Amendment to the U.S. Constitution states, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”)  The respondents did not seek to end the prayer practice, but 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.  Town of Greece, 134 Supreme Court at 1817.  The federal trial court dismissed the lawsuit, but the intermediate federal appellate court reversed, holding that the prayer practice was unconstitutional.  Id. at 1817-1818.

On appeal, a divided U.S. Supreme Court reversed and held that the prayer practice was not unconstitutional.  Id. at 1818.  The Court in Town of Greece relied primarily on its decision in Marsh v. Chambers, 103 Supreme Court 3330 (1983), where “the Court found no First Amendment violation in the Nebraska 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 Establishment Clause.  As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.”  Town of Greece, 134 Supreme Court at 1818.  “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.”  Id. at 1819.

Concerning the prayers at issue, the Court in Town of Greece stated that 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.”  Id. at 1820-1821.  The Court rejected the request that the prayers be directed only to a “generic God,” stating that the “First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech.  Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian.”  Id. at 1822-1823.  However, in “rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content.  The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage.”  Id. at 1823.  “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.”  Id.     

The Court then held that the “prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized.  A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a ‘spirit of cooperation’ among town leaders.”  Id. at 1824.  “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.”  Id.  “On the record in this case the Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its citizens to engage in a religious observance.  The inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed.”  Id. at 1825.  “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.”  Id.

The Court also relied on the fact that the “principal audience for these invocations is not, indeed, the public but lawmakers themselves,” and that “their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers.”  Id. at 1825-1826.  “The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.  No such thing occurred in the town of Greece.”  Id. at 1826.

The respondents testified “that the prayers gave them offense and made them feel excluded and disrespected,” but the Court held that “offense” does “not equate to coercion.  Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.”  Id.  

The Court in Town of Greece concluded its opinion as follows: 

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 town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.

Id. at 1827-1828.

Therefore, the lesson from the recent Town of Greece decision for a religious person involved in local government is that it is constitutionally permissible to invite a minister, pastor, priest, or rabbi to give an invocation at the beginning of a legislative session, such as a city council or town board meeting.  However, representatives of all faiths must be invited to give such an invocation, and it should be addressed to the lawmakers, rather than members of the public participating in the legislative process.