Daniel Mach is Director of the ACLU Program on Freedom of Religion and Belief.

In Town of Greece v. Galloway, the Supreme Court will address the contentious practice of legislative prayer for the first time in three decades.  The Court first tackled the issue in Marsh v. Chambers, when it carved out an exception to the Establishment Clause in upholding Nebraska’s practice of opening state legislative sessions with government-sponsored invocations.  Since then, there has been considerable debate, and litigation, over what limits Marsh and the Constitution impose on legislative prayer.  Hopefully, the Court will seize this opportunity to reconsider the basic holding of Marsh or, at the very least, ensure that the unique Marsh exception remains a narrow one.

Town of Greece involves a challenge by several local residents to the upstate New York suburb’s practice of opening monthly meetings with an official prayer.  Unlike the nonsectarian invocations reviewed in Marsh, the Town of Greece’s legislative prayers have been overwhelmingly denominational, with roughly two-thirds of the invocations including expressly Christian references and beliefs.  On a repeated, regular basis, the meetings open with prayers offered, for example, in the name of “Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life.”  The non-Christian plaintiffs in Town of Greece have argued, quite persuasively, that the both the sectarian character of the prayers and the coercive setting of the local town meetings – which make it virtually impossible for dissenters or non-participants to go unnoticed by local decision makers – distinguish the Greece invocations from the state legislative practice upheld in Marsh.

But before exploring what practices Marsh does or doesn’t allow, it’s worth briefly revisiting the decision itself.  Marsh flouted the fundamental principle of religious neutrality and is a notable outlier in the Court’s First Amendment jurisprudence.  Neither before nor since has the Supreme Court upheld government-sponsored prayer, and with good reason.  As the Court has repeatedly emphasized in other cases, “the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.” Governmental neutrality is exceptionally important when it comes to prayer, the quintessentially holy act for many devout believers.  When the government sponsors official invocations, as in Marsh, it tends to usurp the right of individual conscience, render religion dependent on the state for its propagation, and incite religiously based civic divisiveness.  This was true not only in Greece, but also in cities and towns across the country, where objections to legislative prayer have led to acrimony, vandalism, and even death threats.

The Court should recognize its error and close the Establishment Clause loophole opened in Marsh.  The “unique history” of legislative prayer – the driving force of Marsh’s dubious analytical approach – can’t justify a retreat from fundamental First Amendment guarantees of religious neutrality.

At a minimum, if the Court retains Marsh’s legislative-prayer exception, it should mitigate the constitutional harm and reaffirm in Town of Greece that the exception is necessarily limited.  The Court can do so by reiterating the importance of civic inclusiveness and confirming that any government-sponsored invocations must be nonsectarian.  Such a rule would be consistent with Marsh and would promote the broader constitutional goal of preventing official denominational favoritism.

By the time Marsh reached the Supreme Court, Nebraska’s legislative chaplain, responding to complaints from a Jewish legislator, had “removed all references to Christ” in his prayers, and instead offered “nonsectarian” invocations. That factual record enabled the Court to conclude that the prayer opportunity in Marsh had not been used “to proselytize or advance any one … faith or belief.”  After Marsh, the Court has emphasized that the legislative-prayer decision was predicated, at least in part, on the nonsectarian nature of the invocations.

That makes sense, given the constitutional imperative that government not play favorites with faith.  As the Court has repeatedly reminded us, “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”  Sectarian legislative prayers – those that invoke or specify details upon religious believers are known to disagree – violate that basic principle and should be off-limits.

The Town of Greece and many of its supporters argue against a proscription on denominational prayer, suggesting that the requirement would be difficult to administer and would impermissibly entangle the government in doctrinal matters.  But such a rule has been proven workable by the experience and practices of courts and legislatures nationwide.  Numerous legislative bodies across the country have voluntarily – and successfully – adopted invocation policies that forbid sectarian prayer.  And the Supreme Court and lower courts have had little difficulty differentiating between sectarian and nonsectarian beliefs and practices.  As Justice Scalia has noted, “our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, . . . down to the present day, has, with a few aberrations, . . . ruled out of order government-sponsored endorsement of religion — even when no legal coercion is present  . . . — where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).”

Granted, a ban on sectarian legislative prayer would still leave many – non-believers, polytheists, devout opponents of governmental appropriation of faith, etc. – out in the cold.  But short of overturning Marsh, the alternatives are far worse.

Even as they decry any line-drawing and “parsing” of prayer, some have suggested that the Court could adopt a rule prohibiting only proselytizing prayers.  But such a standard would solve none of the claimed problems with content review, and would likely require courts and legislatures to analyze the substance of prayers and draw lines to an even greater extent than an outright ban on sectarian references.  The proselytizing ban, moreover, would be underinclusive, leaving the state ample opportunity to embrace sectarian prayer and affiliate itself with the preferred faith.

The remaining, wholly unappealing option – one advanced by the Town of Greece and many of its supporters – is a complete hands-off approach to legislative prayer.  Under this regime, anything goes.  Local governments would be powerless to step in, no matter how rancorous, triumphalist, and disparaging the official prayers may be.   This would strike at the heart of religious liberty and equality, burdening the individual conscience of those in the minority, dividing communities along religious lines, and isolating many from basic democratic participation.

The no-holds-barred approach poses no problems, the Town and others insist, because the prayers are attributable to the guest clergy only.   But the context here, as in many Establishment Clause cases, is key.  Legislative prayers in Greece are specifically authorized by the local government for the sole purpose of solemnizing its meetings.  A Town employee selects and invites the prayer giver, whom the Town designates its “chaplain of the month,” and then lists the prayer on the official Town agenda.  Unlike the meetings’ separate “public forum” period, during which Town residents may directly petition the Town Board on a variety of matters, invocations given by the official “chaplain of the month” are plainly delivered on the Town’s behalf and retain the government’s imprimatur.

The First Amendment undoubtedly guarantees to individuals and faith communities in Greece and throughout the country a vital, fundamental right to religious belief, worship, and expression.  But free religious exercise has “never meant that a majority could use the machinery of the State to practice its belief.”

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

Recommended Citation: Daniel Mach, Symposium: Prayer and the machinery of the state, SCOTUSblog (Sep. 26, 2013, 2:16 PM), http://www.scotusblog.com/2013/09/town-of-greece-symposium-prayer-and-the-machinery-of-the-state/