Argument preview: Prayer’s role in government

At 10 a.m. on Wednesday, a constitutional issue returns to the Supreme Court after a three-decade absence: the role that prayer may play in government meetings.  Arguing for the local government in Town of Greece v. Galloway will be Thomas G. Hungar of the Washington office of Gibson, Dunn & Crutcher, with twenty minutes of time.  Supporting the town, at least in part, for the U.S. government as an amicus will be Deputy Solicitor General Ian H. Gershengorn, with ten minutes.  Arguing for the town residents who challenged the prayer practice will be Douglas Laycock of Charlottesville, Virginia, a University of Virginia law professor, with thirty minutes.

Background

America’s history sometimes provides the most important key to what its Constitution means.  Thirty years ago, the Supreme Court said this about the use of a paid chaplain to pray at the beginning of a state legislature’s public meetings: “The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”

That was not all of what the Court had said in the Marsh v. Chambers decision in July 1983, but it turned out to be enough to allow such prayers.  If that history still justifies the practice, then the Supreme Court will have no difficulty deciding Town of Greece v. Galloway.  But the constitutional law governing church-government relations has grown much more complex since then, and it is one of the most divisive constitutional fields for the Court.

Some of the Court’s members want to start all over in defining the limits, if any, on those relations, and some believe the precedents that have built up are adequate to the task.   Some are content just to take the cases one at a time.  It is no exaggeration to say, then, that the constitutional meaning of church-state separation is very much in flux, and it is tempting to think that the Court has taken on a case from a town in New York to reach for some new clarity.

At its core, the Town of Greece case is about the constitutional test to review government involvement in practices that have or can have religious meaning.  Should such involvement be judged by its potential effect in endorsing or promoting one religious faith over others?  Or should it be judged by its capacity to coerce what one believes about faith principles?

That is basically the either/or choice that now is before the Justices.  But even making that choice is not at all simple when either alternative test is applied to prayer at the opening of a government meeting.

Does it matter who is reciting the prayer?  Does it matter what the prayer’s words say?  Does it count whether people are asked to join in by some gesture of participation? If the people are asked to be a part of it, what is the meaning if some don’t do so?   Is the mere process of choosing someone to utter a prayer a key factor?  Is having a prayer always a form of worship, or might it have a more neutral function?  Does it make a difference who is in the audience at the time, and does it matter what effect the prayer does, or might, have on the crowd?  What significance, if any, can be read into how long the practice has continued?  And if a prayer practice’s constitutionality is challenged, does what happens after that influence the constitutionality issue?

It is a fair supposition that the five-member town board of supervisors in Greece, New York, a town of about 100,000 located just outside of Rochester in the upstate region, did not have all the answers to those questions when they decided in 1999 to start opening their monthly public meetings with a prayer.  It is not even certain that they asked those questions.

Up to that time, the board had most often opened its sessions with a moment of silence.  For a time at the outset of praying in 1999, the town supervisor led the prayer himself.  Soon, however, the board decided to have someone from within the community offer such prayers, and they promptly began calling members of the clergy in town, working from a list provided by the local chamber of commerce.  A list was drawn up of clergy willing to lead the prayers, and the staff worked its way down that list, from one meeting to the next.  From time to time, the list was updated.

Those who agreed to lead a prayer were not told what to say or not to say, and were not asked to submit their prayer for advance review by the town board.

Those are the basic outlines.  As a lawsuit over the practice moved forward, considerable disagreement has emerged about just how the practice has worked, and what significance to attach to differing developments and competing interpretations.  Those disputes were the fodder for a lawsuit that was begun after the practice had continued for about nine years.

Two longtime area residents who had gone to board meetings, Susan Galloway and Linda Stephens, were offended by what they heard in the prayers — uniformly Christian in content, and worshipful in tone, in their view.  It was not until after they objected, they would later say, that the board began bringing in some non-Christian prayer-givers, but that remained a distinct minority.  They first protested to the town board, and then decided to hire a lawyer — first, to question the board about the practice, and then to file a lawsuit.

The lawsuit claimed that the procedure for selecting those who led prayer preferred Christianity over other faiths, and that the prayer as it actually happened was religious in character.   A federal district judge ruled for the town board, first finding no evidence that it had intentionally excluded a prayer leader from any given faith.   Second, while finding that many of the prayers clearly were religious in content and identified with the Christian faith, the judge — relying upon the Supreme Court’s 1983 decision in Marsh v. Chambers — said that the Constitution “does not require that legislative prayer be non-sectarian.”   The Marsh decision, according to the judge’s reading of it, had carved out an exception, based on the history of legislative prayers, to the usual limits on government involvement in religious practices.

Appealing the case to the Second Circuit, Galloway and Stephens dropped their challenge to the method of choosing the prayer-givers.  They focused on the claim that the practice, as it actually existed, had the unconstitutional effect of establishing a religion — the Christian religion — as the town government’s own.

When the Second Circuit ruled, it noted that it was not deciding whether a local government could open public meetings with prayer or a religious invocation, and stressed that it would not lay down a flat rule that would only allow prayer in theory but that would, in reality, forbid it from actually going ahead.

Its conclusion was that “a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause.”

In essence, the Second Circuit had relied upon the so-called “endorsement test,” derived from a series of Supreme Court rulings going back to 1971, but most often associated with the judicial writings for the Court of former Justice Sandra Day O’Connor.

Here is the way the Circuit Court summed up its use of that test: “Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”  In short, the Circuit Court had concluded that Greece was mainly a Christian town, and that its local governing officials set up a prayer practice showing that they embraced that faith.

The town then took the case on to the Supreme Court.

Petition for certiorari

In December of last year, the town’s lawyers asked the Supreme Court to rule that, in “the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity,” a legislative prayer practice did not violate the Establishment Clause.  The recitation of that question was preceded by a preamble stressing the significance to this case of the Court’s ruling in Marsh v. Chambers.

The petition argued that the federal appeals courts “are hopelessly divided” over whether they should judge legislative prayers by the historical framework that the Marsh decision had used, or by the “endorsement test.”   Legislative bodies, from Congress down to the most local level, “lack sufficient guidance as to which prayer practices are permissible.”  The town explicitly asked the Court to clarify that the historical test was the controlling one.

Along the way, the petition sought to portray the actual practice in the New York town as generously tolerant.  The policy, it said, allows “any citizen of any faith (or of no faith)” to volunteer to give “the invocation at the beginning of town board meetings.”   There have been, as a result, prayers “with Christian, Jewish, and Baha’i references.” (There was also a Wiccan prayer-giver.)

It contrasted the town’s practice with the facts in the Marsh case: the Nebraska state legislature used public funds to pay a chaplain, from one denomination (Presbyterian), who led prayers for sixteen years, and who delivered prayers that often were “explicitly Christian.”  Out of the Court’s grant of constitutional permission for that practice, the petition said, emerged “a clear test for future courts to follow: legislative prayers are constitutional so long as the government does not act with improper motive in selecting prayer-givers or exploit the prayer opportunity to proselytize, advance, or disparage any one faith or belief.”

The Second Circuit, the town argued, was wrong to abandon that test and apply, instead, an “endorsement” analysis.

Town residents Susan Galloway and Linda Stephens, represented by lawyers for an advocacy group, Americans United for Separation of Church and State, argued that the town’s petition was a challenge to a decision that the Second Circuit had not actually made.  The Second Circuit panel had looked at the totality of the circumstances, and found that the result was a government move to advance “a single religious sect.”

The brief in opposition noted that the Supreme Court had, just one year earlier, denied review of a case involving a county in North Carolina, with the local officials there making the same kind of arguments that the Greece officials were making here.  If there is a difference between decisions of the appeals courts on legislative prayer, the local residents’ filing contended, it is mainly because the facts are different from one case to the next.

The string of decisions by the Supreme Court on church-state issues, this brief asserted, are complementary, and do not conflict with each other.

Finally, the challengers argued that this case had reached the Court prematurely, because the Second Circuit had sent the case back to the trial judge to work out a remedy for the Establishment Clause violation.  While the town may ultimately be ordered to modify its practice, this brief stressed, the Second Circuit had already made clear that it still could fashion a valid prayer practice.

The town board’s petition had the support of eighteen states, members of Congress and state legislators, a group of religious scholars, and the Presbyterian minister who himself was at the center of the Marsh case — the Rev. Robert E. Palmer.   Pastor Palmer’s brief stressed that the prayers he had given, and that the Supreme Court had allowed, were “explicitly Christian.”

Briefs on the merits

The town board’s brief on the merits opened with a simple proposition: “This case can begin and end with Marsh v. Chambers.”  That decision, it stressed, put only “two modest limitations” on legislative prayer: choosing prayer-givers out of an “impermissible motive” or using the prayer experience to promote or degrade a faith.   There is simply no evidence that this town board did either, the petition asserted.

Not surprisingly, the brief again emphasized the facts in the Marsh case, and suggested that those facts made this case an easier one because of the differences.   Here, the town board argued, prayers were open to anyone, no one got paid for offering a prayer, and different faith traditions were represented.

In a short section of the new brief, the town board suggested that the Court might uphold the town’s prayer practice by allowing governments to treat the citizen prayer sessions as a limited kind of public forum, in which the prayer-givers who do take part are permitted to  express their own privately held and uncensored religious views, instead of a more generic kind of divine guidance for the government decision-makers.  Much of the brief, though, is an energetic challenge to the “endorsement test” for enforcing the Establishment Clause.

What that test does, the town contended, turned the Marsh decision upside down: Marsh made legislative prayer constitutional on the basis of a presumption and barred government officials from probing into the religious content of prayers, while the Second Circuit here started with an inquiry into the content of the prayers, and found them unconstitutional because of their Christian content.

The endorsement approach, the town brief said, “threatens to impose a ‘state-created orthodoxy,’ in which judges reviewing invocations for hints of impermissible endorsement would put at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed” (quoting from a prior Supreme Court opinion).

The town’s lawyers do not explicitly urge the Court to drop the “endorsement test” altogether, but only to declare that it has no place in analyzing prayer at government meetings.  The brief’s preferred outcome, it is clear, would be to apply Marsh‘s historical analysis as if that were a perfect fit.

But between the petition and merits stages of this case, the town’s lawyers appeared to have developed a sense that the Court might not use the Marsh approach, and thus might turn to some more customary approach to Establishment Clause analysis.  One part in the brief, for example, contended that the town board’s prayer practice could survive any Establishment Clause test that the Court chose to apply.

In the merits brief, the lawyers’ first task appeared to be to steer the Court clearly away from any use of the “endorsement test,” because that is the analysis that cost them the case in the Second Circuit.

But, as an alternative to that test or to the historical test, this brief put a notably heavier emphasis on the complaint that the Second Circuit’s use of the endorsement test would amount to “state-created orthodoxy” and “imposition” of a preferred faith on the citizenry.   That kind of reference is coercion rhetoric, and the town’s brief clearly intended it to be read that way, because it talked of the need for the Court to rule in this case in a way that protects “religious liberty” from government compulsion.

While this is not an explicit embrace of the “coercion” mode of analysis, it does serve as an appeal to the jurisprudence of Justice Anthony M. Kennedy, who is closely associated with the “coercion” test and whose comments about it are quoted with some frequency in the brief.

As matters have turned out, it may have been clairvoyant for the town board’s lawyers to try to turn a form of “coercion” analysis their way.   That is because the two town residents, in their brief on the merits, turned fully toward arguing that the town of Greece’s prayer practices are a form of unconstitutional coercion to get the community to join in a shared Christian faith.

The argument section of the challengers’ brief opened with the argument that the prayer practice in the town “puts coercive  pressure on citizens to participate in the prayers.”  Quoting from Justice Kennedy’s work along this line of reasoning, this brief made these points: “Citizens attend meetings not as observers, but as participants.  Some must attend to request special-use or rezoning permits or board action on other issues; others attend to be sworn in to office, to be publicly honored, or to fulfill an educational requirement.  Citizens’ attendance is not voluntary in any meaningful sense.”

That is an argument explicitly drawn from Justice Kennedy’s declaration that officially sponsored prayer at public school graduation ceremonies is coercive because students have no real option but to attend, even if they would be offended by the prayers.

The residents’ brief pressed that argument further, suggesting that the town board makes no effort to ease the coercive impact of the Christian prayers.  The town, the brief said, “does not ask its guest chaplains to refrain from asking citizens to join in the prayers, and it takes no steps to ameliorate the coercion faced by those in attendance.  Religious minorities are pressed either to feign participation in an act of worship that violates their own beliefs, or to publicly display their dissent from majoritarian religious norms.”

When the “coercion” is paired with prayers of a specific religious content, this brief asserted, Greece’s prayer practice is “doubly unconstitutional.”   And, it added, the Court’s decision in Marsh “did not approve prayers in a coercive environment.”

The residents’ brief concluded with an argument that the town board was actually asking the Supreme Court to allow government prayers that not only endorse religion as a general matter, but also embrace “tenets of particular religions.”

The federal government has entered the Greece case, obviously interested in protecting the long tradition of prayer recitations to open congressional sessions, and it made arguments largely on the side of the town board.  Its amicus brief on the merits urged the Court to allow prayers to open government meetings, even if most if not all of the recitals are from one religion.  But it also asked the Court to prevent citizens who take part in such opening opportunities from turning it into a forum for expressing their own private prayers.

The Constitution, the Justice Department filing contended, does not allow the creation by government of a public forum for the expression of private prayer, but only in a form that assists the government body in making the occasion more solemn with the aid of divine guidance.

The town board’s reply brief sought to exploit the challengers’ switch to a coercion argument instead of fully defending the Circuit Court’s use of an ‘endorsement’ analysis.  In doing so, however, the town’s filing was careful not to disparage a “coercion” analysis if it were properly used — as in the graduation prayer context.  The “coercion” test does not work when taken out of the adolescent realm and used to judge prayers uttered when the audience is composed mainly if not entirely of adults, the town’s lawyers asserted.

But the reply brief did not take away from the strong hints in the merits brief that courts could engage in coercion if they sought to impose orthodoxy on prayer-givers by undertaking to censor the content of their utterances.

If numbers of amici filings are in any sense a measure of one side’s strength in a Supreme Court case, the town board gets something of an advantage with twice as many of these briefs as were filed in support of the challengers to the prayer practice.  The majority of those briefs are from conservative and libertarian legal advocacy groups, and from religious liberty advocates such as the Becket Fund for Religious Liberty.   About half of the states have lined up on that side of the case, as have thirty-five members of the U.S. House of Representatives.   The Rev. Palmer from the Marsh case renewed his support at this stage.

Backing the two town residents are liberal and progressive advocacy organizations, several groups of professors of law, political science and history, organizations that strongly advocate separation of church and state, and mainstream religious denominations.

Analysis

Over the past three decades, since the Marsh ruling, the Court passed up opportunities to return to the issue of prayers at government meetings.  Thus, the choice to step back into the controversy at this belated point probably should be taken as an indication that this generation of Justices is at least tempted to make a strong new statement on the issue.

Even if the Court did no more than unqualifiedly reaffirm the Marsh decision, that would amount to such a historic new declaration, particularly in the wake of several decisions voicing concern about prayers that appear to have government sponsorship, at least in some settings.   Those rulings, though, were mainly in settings involving vulnerable adolescents, and the Court majority may have no inclination at this point to move their rationale into the mostly adult setting of government meetings.

The federal government’s participation in the case, however, could turn out to be a complicating factor.  It has given a strong push for upholding legislative prayers, even when they have undeniable religious content.   If the government’s usual prestige before the Court holds sway in that analysis, then Marsh may be put on sturdy new constitutional ground.

But the fact that Justice Department lawyers have cautioned the Court that the actual content of prayers in government settings may stray into privately expressed religious preferences would seem to line it up at least partly on the side of the prayer challengers: those two town residents want the Court to require governments to take explicit steps to ensure that citizen or clergy prayers in those meetings are not turned into proselytizing for specific faiths, at least hinting at coercion.

And that has prompted the lawyers for the town board in Greece to mount an energetic challenge to any such official intervention into what prayer-givers actually say.  At a minimum, the exchanges over this point — seen as government censorship by the town, but as orthodoxy-promotion by the challengers — make a simple reaffirmation of Marsh somewhat out of easy reach.

This case, at its most significant potential level, could put the “endorsement test” into significant jeopardy.   It no longer enjoys real favor with a majority of the Court, and the sustained denunciation of it by the town board’s lawyers here could further energize that skepticism.  It is far from clear, however, what would be left of modern church-state precedents if the Court were to opt to abandon that test altogether.

That, perhaps, is why the town board’s attorneys have not suggested the total demise of that test, instead recommending only that it be walled off from use in the context of legislative prayers.