Nelson Tebbe is a Professor of Law at Brooklyn Law School. Micah J. Schwartzman is the Edward F. Howrey Professor of Law at the University of Virginia School of Law.

So far, the most interesting and puzzling aspect of Town of Greece v. Galloway is that the Obama administration’s Solicitor General has filed a brief siding with the town, which has a legislative prayer practice that is identifiably Christian.  Furthermore, the SG has proposed a test for determining the constitutionality of legislative prayer that aligns with the most permissive approach that circuit judges have developed in previous cases on legislative prayer.  What happened?

Understanding and countering this surprising development is important because the Court’s decision in Galloway could conceivably matter in several ways.  First, the custom of legislative prayer itself is widespread in national, state, and local governments.  All of these will be looking to the Supreme Court for guidance on what is constitutional.  Second, the Court’s law on legislative prayer provides the most relevant guidance for a range of religious expressions by government that have not yet been evaluated directly by the Court – customs like opening Supreme Court sessions with the phrase “God save this honorable Court,” inclusion of the phrase “under God” in the Pledge of Allegiance, adoption of the official motto of the United States, “In God We Trust,” and public prayer by military chaplains.  Third, the case presents the Court with an opportunity to revisit the legacy of Justice O’Connor, who was especially influential in this area.  Her “endorsement test,” which was embraced by the Court during her tenure, prohibits government from sending messages that endorse one or all faiths in a way that disadvantages outsiders and harms their standing as members of the political community.  That test, which informed the circuit court’s analysis in Galloway, is vulnerable and could be weakened or explicitly eradicated now that the composition of the Court has changed.

Virtually all of the arguments in this area concern a single precedent, Marsh v. Chambers, in which the Court approved a legislative prayer scheme in Nebraska.  Written by then-Chief Justice Warren Burger, Marsh has drawn substantial criticism because it carved out an exception to Establishment Clause doctrine and allowed government to promote religion.  It did that almost entirely on the basis of a historical account of legislative prayer that was arguably highly selective.  But even if we take Marsh as a given – as a matter of constitutional politics, it probably is a fixed feature of the legal landscape for the foreseeable future – it offers ample room for interpretation. Without announcing a test, Chief Justice Burger simply approved Nebraska’s program, in which a chaplain employed by the legislature offered prayers that avoided specifically Christian references.  Left open was the question of how the Constitution limits other legislative prayer policies.

One possible reading of Marsh is that legislative prayer must be nonsectarian or ecumenical in its content.  Judge J. Harvie Wilkinson, writing for the Fourth Circuit, has come close to embracing that approach.  It raises the danger that government will become entangled in examining the content of prayers to determine whether they are sufficiently inclusive.  Another approach is to allow individual prayers to be sectarian – to allow references to Jesus Christ, for instance – so long as the overall scheme is diverse, so that it does not send a message of approval of a particular faith or religion generally.  That method involves a version of Justice O’Connor’s endorsement test, and it is the one the Second Circuit took in Galloway itself.

Rather than either of these, the Solicitor General now urges the Court to allow legislative prayer whenever it is not “exploited to proselytize or advance any one, or disparage any other, faith or belief.”  That language is from Marsh, but its meaning is arguable.  One way of understanding it is as compatible with the endorsement test – legislative prayer is unacceptable whenever it “advance[s]” a particular faith.  But the SG makes it clear that it rejects the endorsement test in this context.  Non-advancement might well be synonymous with anti-proselytizing, the SG argues, but if it goes further then it only prohibits “a broader range of conduct with the same general purpose [i.e., proselytizing],” namely “a government affiliation with or a declaration of government allegiance to a particular faith or belief.”  Christian references are acceptable, the brief says repeatedly.  Overall, the SG gives the impression that only legislative prayer that has the purpose of proselytizing or disparaging a particular faith is unconstitutional.  That is strikingly permissive.  Might it even permit legislators to adopt a policy of opening every session in the name of Jesus Christ?

If the limitation on advancement of religion means anything beyond a ban on proselytizing, it ought to have prohibited what happened in the Town of Greece.  There, according to facts relayed by the Second Circuit, the legislature only observed a moment of silence until 1999.  In that year, it began opening its monthly meetings with a prayer from a local clergy member.  No formal policy was implemented for more than ten years.  The town claims that it would have welcomed any religious leader who wished to give an invocation, but it never advertised that policy.  Instead, a town employee went through the Community Guide, published by the Chamber of Commerce, and invited leaders of each religious organization to serve as “chaplain of the month.”  Because almost all congregations within the town’s borders are Christian – there is one Buddhist temple within the town borders but the two synagogues are located just outside it – that procedure led to a lopsided prayer practice.  From 1999 until 2007, every prayer was delivered by a Christian.  During the calendar year 2008, after plaintiffs began raising objections, four (of twelve) monthly prayers were offered by members of minority faiths.  But in 2009 and 2010, when the record closed, all the prayers were once again Christian.  Moreover, they were largely sectarian in content.  About two-thirds of the 130 prayers offered during this time period contained specifically Christian references to Jesus Christ.  Prayers occurred at the start of meetings, which some citizens had to attend to conduct official business, they were followed by thanks from the presiding official and the presentation of a plaque to the “clergy of the month,” and they were listed in the official minutes.

In an opinion written by Judge Guido Calabresi for a unanimous panel, including judges appointed by presidents of both parties, the Second Circuit found the town’s practice unconstitutional.  Overall, Judge Calabresi concluded that the “town’s prayer practice must be found to be an endorsement of a particular religious viewpoint.”  Not that it was the town’s intent, but the effect of its policy was to create an impression of favoritism toward Christianity.  Absent any statement from the government that its prayers were meant only to solemnize its sessions, the “steady drumbeat” of sectarian prayer had an exclusionary impact, according to the court.  Although legislative prayer can be constitutional in other circumstances, Greece’s practice harmed the equal citizenship of nonbelievers and members of minority faiths.

How could the SG conclude otherwise?  Again, its own proposed test purports to rule out legislative prayer that “advance[s]” a particular faith.  That is precisely what the Town of Greece’s practice did.  One possible conclusion is that, for the SG, only proselytizing as such is really prohibited (along with denigrating a faith).  But that approach really would open the door to markedly exclusionary expressions by local governments across the country.  Perhaps the SG was concerned to protect the legislative prayer practices of Congress.  But it need not have gone so far in order to do that, because Congress’s practices have been more inclusive.  Moreover, citizens who attend congressional sessions are merely observers, without the need or ability to conduct official business, unlike those who may be obliged for various reasons to attend the smaller and more intimate legislative sessions held by the Town of Greece.

When the Justices hear the case, they should be careful to preserve something like Justice O’Connor’s endorsement approach, including in the area of legislative prayer.  Without a constitutional prohibition on government expression that effectively embraces a particular faith, American lawmakers will consider themselves able to celebrate monotheism or even Christianity as such, despite the presence of numerous religious minorities and nonbelievers who hold beliefs outside those traditions.  Full and equal citizenship in a free society should mean more than that.

Posted in Town of Greece v. Galloway, Featured, Legislative prayer symposium

Recommended Citation: Nelson Tebbe and Micah Schwartzman, Symposium: The puzzle of Town of Greece v. Galloway, SCOTUSblog (Sep. 24, 2013, 10:20 AM), http://www.scotusblog.com/2013/09/symposium-the-puzzle-of-town-of-greece-v-galloway/