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SCOTUS for law students (sponsored by Bloomberg Law): Prayer at government meetings

When may public officials open their meetings with a prayer? The Supreme Court will attempt to answer this important question in the new Term that begins on October 7.

The answer may be of considerable importance at many levels. Many local governments – from city, town, and county councils to school boards – will be awaiting the outcome to decide whether they may continue the practice of having a prayer at the start of their sessions. Others will watch the decision closely to see what insight it provides on the Court’s view of the scope and meaning of the Establishment Clause of the First Amendment.

Finally, the decision should be of interest to law students studying the First Amendment generally or in religion seminars more narrowly, or to those in local government law courses or doing internships with local legislative bodies.

The First Amendment says in the relevant portion, “Congress shall make no law respecting an establishment of religion . . . .” The meaning of those words has been hard-fought in local communities and legislatures throughout the United States and in the Supreme Court, where the Justices have been deeply divided for decades over exactly what is permitted and what is forbidden by the Establishment Clause, as it is known. At one end of the spectrum has been the view of the late Chief Justice William Rehnquist that the words prohibit the establishment of an official church in this country, like the Church of England which prompted some Puritans and others to flee England for the new world that became the United States. At the other end of the spectrum, the late Justice William J. Brennan believed the words represented the requirement of an extremely high wall of separation between church and state.

Between those polar opposites, there is much ground to cover, and that is where the current Supreme Court case falls. The town of Greece, New York, not far from Rochester, used to begin town board meetings with a moment of silence, but since 1999 a prayer has been recited at the start of all monthly sessions. Between 1999 and 2007, according to the U.S. Court of Appeals for the Second Circuit, the opening prayer was delivered by a Christian clergy member, generally at the invitation of a town official. After two town residents, Susan Galloway and Linda Stephens, complained about the practice, in 2008 the prayer was delivered on one occasion by a Wiccan priestess, on another occasion by a local Baha’i leader, and twice by a local Jewish man. Town officials explained that anyone may ask to deliver the prayer, including atheists and non-Christians, and that no such requests had ever been rejected. The town officials also said their practice was not to review the content of the prayers.

The two residents sued in federal district court in 2008 arguing that the town policy violated the Establishment Clause. They said the selection of clergy heavily favored Christianity in a way that aligned the town meetings with a particular faith. They also argued that the prayers, themselves, tended to use Christian language and made the practice very sectarian in nature. The federal district court ruled in favor of the town, rejecting the residents’ contention that the prayers violated the Establishment Clause. A three-judge panel of the Second Circuit reversed, ruling unanimously that the town did violate the First Amendment by creating an establishment of religion. Judge Guido Calabresi, the former dean of Yale Law School, wrote for the court that when viewing the town’s policy as a whole, the picture presented was that town officials favored Christianity over any other practices.

The appeals court said the problem was not so much the desire to start the meetings with prayers. “The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years,” Judge Calabresi wrote. He added, “But when one creed dominates others—regardless of a town’s intentions—constitutional concerns come to the fore.” The problem for officials of the town of Greece, the appeals court said, was that the practice appeared almost entirely Christian. No real effort was made to let the community know that other religions were welcome, and officials made no attempt, themselves, to reach out to other faiths to encourage them to take a turn delivering the prayers.

The town appealed to the Supreme Court, which agreed to hear the case and set oral argument for November 6. As the Second Circuit saw the issue, the case sits at the intersection of two different approaches to the Establishment Clause. In one precedent, the Supreme Court ruled in Marsh v. Chambers in 1983 that the use of a chaplain to start the day in the Nebraska state legislature did not violate the First Amendment. The Court ruled that the long history of the practice meant legislative prayer had “become part of the fabric of our society.” The Marsh Court said the fact that the invocations were said most often by a Christian clergyman should not concern the Justices. The Justices should only be concerned with the content of the prayers, the Court ruled, to make sure the practice does not proselytize one religion or disparage another.

The Second Circuit found another relevant and far more limiting Supreme Court precedent in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter decided in 1989. There, the Court said that history and tradition could not be used to justify a practice that seems to align government with a particular religion. The Court invalidated a Christmas crèche display on the main staircase of the Allegheny County Courthouse while upholding another display outside the city-county building that featured a Chanukah Menorah and a Christmas tree. The crèche represented an image that endorsed the Christian faith, a deeply divided Court majority ruled.

The Supreme Court now finds itself at this same intersection, facing the question of whether legislative bodies have the discretion based on historical practice to solemnize their sessions with a prayer, or whether city, county, and town councils must refrain from any form of prayer that appears to favor a particular faith or practice.

The town’s appeal has garnered some high-powered support. Solicitor General Donald Verrilli and the federal government have filed a friend-of-the-court brief, which argues that the appeals court went beyond its legitimate role in reviewing a case of legislative prayer when there was no issue of proselytizing or disparaging religion. It is not an establishment of religion, the Solicitor General argues, “merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references.”

The town’s position is also supported by thirty-four members of the U.S. Senate concerned that the position of the Second Circuit could undermine the historic practice of prayer at the start of congressional sessions. There are eighty-five members of the U.S. House who signed another brief. Also lined up to support the town in friend-of-the-court briefs are twenty-one states, eight city and county governments from seven different states, and more.

The case is complicated by the fact that the Supreme Court might decide to take an entirely different approach to the case than that of the Second Circuit. Justice Kennedy, frequently the deciding vote between liberal and conservative wings of the Court in closely divided cases, has advanced the view that the Establishment Clause is violated when a government practice coerces individuals to pray or worship. Kennedy may take the approach that the appropriate approach in the present case is to ask whether the town board’s prayer coerces attendees at the meetings to pray.

The arguments for the town residents who challenged the prayer policy were just recently filed in the Supreme Court. Their brief appears to assume that the deciding vote will be cast by Justice Kennedy. Right from the start, the brief sets out the focus of the case as “the right of citizens to participate in local government without being required to participate in sectarian prayers.” Their brief argues that the practice of opening meetings with a prayer coerces those in attendance to take part and adds that the prayers reflect a particular faith rather than being “inclusive.”

However the case comes out, it is likely to shed light on how the Roberts Court plans to approach Establishment Clause cases and is also likely to fuel the flames of political battles over what role religion should play in the civic life of the country.

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Prayer at government meetings, SCOTUSblog (Sep. 26, 2013, 11:00 AM),