May 6, 2014
Yesterday, in a 5-4 decision in Town of Greece v. Galloway, the Supreme Court ruled in favor of the Town of Greece in a challenge to its legislative prayer practice. This is a major win for religious liberty, and for the free expression of religion in public spaces.
So what happened?
The Town of Greece, New York, had for years maintained a practice of permitting local ministers from the area to offer a brief prayer before town board meetings. The town opened these meetings to all ministers who would respond, and never exercised control over, edited, or censored the content of prayers. Even though the town opened the opportunity to ministers of all faiths, the town was overwhelmingly Christian, so the responding ministers happened to be Christian. Town of Greece v. Galloway, 572 U.S. ____ (2014) (slip op., at 1-3). After Susan Galloway and Linda Stephens complained, the town invited Jewish, Baha’i, and even a Wiccan priestess to give prayers. Id. at 3-4. Galloway and Linda Stephens still sued, claiming the town “preferred” Christianity — as a remedy, the plaintiffs asked the town to limit prayers to “inclusive and ecumenical” prayers referencing a “generic God” not associating the government with one belief. Id. at 4.
What did the Supreme Court say?
The Court began its analysis by relying on Marsh v. Chambers, 463 U.S. 783 (1983), in which it held that there was no Establishment Clause violation when a state legislature opened session with a prayer by a chaplain paid by state funds. Galloway, slip op., at 6. None of the Establishment Clause “tests” apply in this context, the Court continued, for “history support[s] the conclusion that legislative invocations are compatible with the Establishment Clause.” Id. at 7. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Id. at 8. Setting the groundwork for future cases, the Court continued: “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 8. “A test that would sweep away what has so long been settled” — such as legislative prayer — “would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Id. at 8.
After these preliminary remarks, the Court restated the question before it: to determine “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” Id. at 9. In doing so, it addressed the opponents’ two main arguments.
Opponents’ first argument: Any prayer must be nonsectarian, or not identifiable with any one religion (in this case the prayers “use[d] overtly Christian terms” or “invoke specifics of Christian theology”).
The Court’s response: The Court responded that “[a]n insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer” in the Court’s jurisprudence. 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 ‘coexis[t] with the principles of disestablishment and religious freedom.’” Id. at 10. The Court noted that specific Christian references during legislative prayers have been made throughout the history of our country, and Congress has also permitted Jewish, Buddhist, and Muslim prayers. Id. at 10-11. “[T]he contention that legislative prayer must be generic or nonsectarian” is “irreconcilable” with a proper reading of precedent, for “Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.” Id. at 11-12. In Marsh, and in its present ruling, “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.’” Id. at 12.
The Court drilled in on the precise issue: “To hold that invocations must 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.” Id. at 12-13. Government-mandated prayer language would not be much different from legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.” Id. at 13. “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy” — this is a “contradiction that cannot be accepted.” Id. at 13 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992).
Indeed, it would be quite ironic for the government to “establish” its version of nonsectarian prayers in an effort to avoid violating the Establishment Clause. As the Court noted, such “‘untutored devotion to the concept of neutrality’ must not lead to ‘a brooding and pervasive devotion to the secular.’” Id. at 13 (quoting School Dist. of Abington Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).
Ironically, while the opponents of the prayers in this case are upset that only “majority” religions will have their prayers recited, they violate their own principle of upholding minority religious interests in desiring to craft “non-sectarian” prayers acceptable to…..well, a majority of those present. The Court repudiated such thinking with the following reminder: “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,” so long as the prayer does not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion. Id. at 14-15. Indeed, the Court’s opinion upholding the “all comers” policy actually protects minority interest.
Finally, the Court noted, the town’s policy (which was open to prayers of all faiths) was not unconstitutional merely because nearly all the congregations in the town were Christian. As long as the town does not discriminate (which it did not), it is not required to search for some type of unattainable “religious balancing.” Id. at 17-18.
Opponents’ second argument: The opponents of the prayer also argued that the town’s prayer practice “coerces participation by nonadherents” because “the setting and conduct of the town board meetings created social pressures that force non adherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.” Id. at 18.
The Court’s response: The town of Greece, “through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings,” did not “compel its citizens to engage in a religious observance.” Id. at 19. The Court acknowledged that “[t]he 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,” yet “[n]o such thing occurred in the town of Greece.” Id. at 20. The opponents may have felt “offended,” but as the Court pointed out, “[o]ffense … 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. at 21. “[L]egislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.” Id. at 22.
It was heartening to see Justice Kennedy observe 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,” and thus, the prayer policy of the Town of Greece “is not an unconstitutional establishment of religion.” Id. at 23. The Court concluded: “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 24.
Justice Alito was joined by Justice Scalia in his concurring opinion, where he responded to the dissent’s charges that the town should have required nonsectarian prayers and brought in representatives from different religions. Obviously, one of the concerns of adopting a policy of general nonsectarian prayers is facing the question of who screens such prayers and decides exactly what level of “nonsectarian” quality is required before permitting the prayer. Galloway, slip op., at 5 (Alito, J., concurring). Justice Alito also reiterated that requiring local governments to compile a list of potential prayer-givers in a certain way would only confuse already confusing Establishment Clause jurisprudence. Id. at 7.
Justice Thomas wrote a concurring opinion (joined by Justice Scalia) in which he argued the Establishment Clause was not meant to be incorporated as to the states, but even if it was, the prayer policy here does not violate it. Galloway, slip op., at 1-5 (Thomas, J., concurring). Justice Thomas argued that in accordance with the Founders’ positions on this issue, only legal coercion regarding a certain religious belief would violate the Establishment Clause. Id. at 7.
Justice Breyer dissented and ultimately concluded — albeit based on his “legal judgment” as opposed to any standard or legal test — that because the prayers were almost all Christian, the Town of Greece did “too little to reflect the religious diversity of its citizens.” Galloway, slip op., at 5-6 (Breyer, J., dissenting).
Justice Kagan also dissented for similar reasons, and was joined by Justices Ginsburg, Breyer, and Sotomayor in her dissent. She believed the Town of Greece violated the “norm of religious equality” conferred by the First Amendment, Galloway, slip op., at 1 (Kagan, J., dissenting), by not doing enough to ensure diverse prayers of various faiths were presented. According to Justice Kagan, the town could have also presented more nonsectarian prayers, which in her view, it did not. Justice Kagan argued that the Town of Greece, in permitting explicitly Christian prayers, caused citizens who came before the town to conduct business to feel compelled to participate in order to not interfere with their government business. Id. at 2-8. She believed the prayers here were “addressed directly to the Town’s citizenry,” as opposed to being addressed to the legislators like in Marsh, and “were more sectarian, and less inclusive, than anything this Court sustained in Marsh.” Id. at 9. In essence, like Justice Breyer, Justice Kagan believed the town did not do enough to promote religious diversity, and thus its prayer policy was unconstitutional.
What do I say?
The main dispute between the majority and the dissenters in this case was over whether the Town of Greece was required to take active steps to ensure more religious diversity in the prayers offered before meetings. None of the justices could dispute the prayer policy permitted all comers — it clearly permitted those of all faiths to come and offer prayers in accordance with their beliefs. For the majority such a policy was constitutional. Justice Kagan and her fellow dissenters, however, would have required the policy to be more highly publicized to representatives of all faiths to ensure they knew they could come and pray, and would have liked the town to take additional steps to ensure more faiths were represented. For the justices in the majority, a policy of nondiscrimination between religions was enough (thus permitting the town to remain passive and out of religious determinations), while the dissenters are promoting active government interference in religion by requiring the town to determine what efforts are sufficiently “inclusive.”
Here’s my problem with the dissenters’ view — it would have required the town to (1) either mandate a sufficiently nonsectarian prayer (thus requiring the town to be the active arbiter of what is sufficiently nonsectarian) or (2) take steps to ensure more diversity (thus actively involving the town in deciding how and what religious views are solicited). In either case, town is taking proactive steps as regards religion.
If a town is drafting a “nonsectarian” prayer, who decides what is sufficiently nonsectarian? Who decides what words are included, and what phrases are used? There is obvious opportunity for abuse and unnecessary interference with religion by the government in such a scenario, which, thankfully, the majority recognized when it stated, “[t]o hold that invocations must be nonsectarian would force the legislatures … to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree … .” Galloway, slip op., at 12-13. Moreover, the problem with nonsectarian prayers is in seeking to associate the government with all beliefs, you water them down, and associate the government with nothing but muzzled incoherency.
If mandating more religious inclusivity, who decides what steps are needed? What methods are used? Should a town conduct a search within a fifty mile radius for ministers of different faiths? Is a phone call notifying those ministers sufficient? Or must the ministers be incentivized to come and pray? How many different faiths are required — four or five? Ten or eleven? Should ministers be invited in accordance with the percentage of the local population adhering to that religion? As is obvious, such questions are not only ridiculous, but involve the government in religious decision making, and all the opportunity for abuse that entails. In addition, Justice Kagan’s requirement of more religious inclusivity is open-ended, and would leave local governments guessing at what is required of them. The dissent’s position would open the door for more lawsuits regarding exactly what proactive steps are required.
In either scenario, the dissenters promote active government involvement in religious decision making, and thus interference with religion, the very things they claim to be against. Justice Kagan’s position would not do away with the problem of the government “align[ing] itself with, and plac[ing] its imprimatur on, a particular religious creed,” Galloway, slip op., at 5 (Kagan, J., dissenting), but would merely shift the legal battleground into how much government promotion of religious diversity is required.