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Tradition! Today’s legislative prayer decision in Plain English

Since the beginning of April, the Court has issued opinions in two high-profile cases:  on April 2, it struck down the aggregate limits that federal law imposes on campaign contributions, and on April 22 it upheld Michigan’s ban on the use of affirmative action by public universities.  Today the Court added another ruling to this Term’s list of highly contentious cases:  by a vote of five to four, the Court rejected a challenge to a New York town’s practice of beginning its town council meetings with a prayer.  In an opinion by Justice Kennedy, the majority regarded the town’s practice as just the latest chapter in a long tradition of such prayers by Congress and the states.  Justice Elena Kagan’s lead dissent painted a very different picture, characterizing the prayer practice as a betrayal of the principle that the government will treat all Americans the same, regardless of their religion.  Let’s talk about the decision in Plain English.

Nearly thirty years ago, in a case called Marsh v. Chambers, the Supreme Court held that the Nebraska legislature’s practice of beginning its sessions with a prayer by a chaplain who was paid by the state did not violate the Constitution.  As I explained in my preview of the case last fall, the Town of Greece argued that the decision in Marsh makes this an open-and-shut case, so that its own prayer practice is clearly constitutional.  Today, by a bare majority, the Court agreed.

Emphasizing that a key factor in determining whether a specific religious practice is constitutional is whether there is a historical tradition of such practices, and in particular whether the drafters of the Constitution would have accepted that practice, the Court framed the question before it as whether the prayers offered at the town council meetings in this case “fit[] within the tradition long followed in Congress and the state legislatures.” Susan Galloway and Linda Stephens, the two women challenging the town’s prayer practice, told the Court that this practice does not, for two reasons.

First, they argued, the Court’s decision in Marsh did not authorize prayers, like those in the town’s meetings, that contain language or themes unique to a specific faith – for example, references to Christ or Jesus.  But, the Court countered today, nothing in the Court’s decision in Marsh suggested that legislative prayer can only be constitutional if it uses “neutral” language that refers “only to a generic God.”  To the contrary, the members of Congress who wrote the First Amendment would have expected prayers to contain exactly the kind of “explicitly religious themes” about which Galloway and Stephens complained.  And it doesn’t matter that many more religions are now represented in the United States than back then.  The chaplains who offer prayers now at Congress still use very religious language, but the important thing is that they come from all different faiths – not just Christianity.  And requiring prayers to use only generic language would put the legislative bodies that sponsor them in the unattractive position of having to enforce that rule, which in turn would result in far more government involvement in religion than there currently is.  Moreover, the Court continued, you can’t please everyone just by limiting the prayers to “seemingly general references to God or the Father,” because that might offend citizens who either don’t believe in God at all or believe in more than one God.

But, the Court went on to emphasize, even if legislative prayers do not have to be “neutral,” that does not mean that the chaplains who offer them can say whatever they want.  The Court observed that prayers like the ones in this case, which are offered at the beginning of the town council meeting, are intended to “lend gravity” to the meeting and should be “solemn and respectful in tone.”  However, the Court cautioned, prayers which are instead used as an opportunity to condemn or try to convert people who are not members of a particular religion (which were not used in the Town of Greece) would not serve that purpose and – the Court suggested – might run afoul of the Constitution.  And the Court gave little weight to the fact that the chaplains who offered prayers were overwhelmingly Christian:  what really matters, the Court stressed, is that the town cannot (and did not) discriminate in selecting chaplains.  The Constitution does not require it to search outside the town for chaplains from other faiths.

Having concluded that the prayers that are being challenged in this case fall squarely within the tradition that the Court upheld in Marsh, the Court then moved on to the challengers’ second argument:  that their case was different from Marsh because residents attended town council meetings to participate in the meetings themselves – for example, to try to obtain a zoning variance or a permit, or to speak on an important local issue – and would feel pressured to participate in the prayers.  By contrast, they noted, virtually all of the work done by the Nebraska legislature involved only the legislators themselves, with the spectators there just to watch the proceedings.  But the Court did not find this distinction persuasive.  In a section of the opinion joined only by the Chief Justice and Justice Alito (more on this below), Kennedy explained that legislative prayers have a long history in the United States; as a result, most people understand that they are offered primarily for the benefit of the lawmakers themselves, rather than as part of a government-sponsored effort to bring religion into everyone’s lives.  It would be a different story, Kennedy acknowledged, if the members of the town council instructed people at the meeting to pray, shamed anyone who declined to pray, or suggested that their decisions might somehow hinge on whether someone did pray, but none of those scenarios had happened in the Town of Greece.  Although Galloway and Stephens may have alleged that they were offended by the prayers, merely being offended does not violate the Constitution.

Justice Thomas agreed with most, but not all, of Justice Kennedy’s opinion.  He wrote a separate opinion (which Scalia joined in part) to explain that, in his view, the whole case should be a non-issue because the First Amendment’s Establishment Clause does not even apply to states and local governments like the Town of Greece:  because it provides that “Congress shall make no law respecting an establishment of religion,” it applies only to Congress.  And Thomas would require much more than “subtle pressure” before the government’s conduct could violate the Constitution; only “actual legal coercion,” such as requiring someone to go to church or imposing taxes to pay for the church, would qualify.

Justice Stephen Breyer filed a dissenting opinion that focused on the facts of the case, but the main dissent came from Justice Elena Kagan, who was joined not only by Breyer but also by Justices Ruth Bader Ginsburg and Sonia Sotomayor.  (Interestingly, Kagan, Breyer, and Ginsburg are all Jewish; the five Justices who voted in favor of the prayers are all Catholic, as is Sotomayor.)  Kagan started with what she saw as the “big picture”:  our country’s practice of “religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian.”  Today’s ruling, she contended, violated that principle.

Kagan began by agreeing with the majority that there is a long history of legislative prayers.  She also agreed that the real question before the Court in this case boils down to whether the town’s prayer practice is in line with that tradition.  And this is  where she parted ways with the majority, because in her view it is not.  It mattered to her that, unlike Congress and the Nebraska legislature in Marsh, the Greece town council is a “kind of hybrid”:  it acts both as a legislature and a place in which town residents can interact with their government.  It mattered to her that, at town meetings, the prayers are directed not at the members of the town council but instead “squarely at the citizens.”  And it definitely mattered to her that the prayers offered at the town council meetings are, in her words, “explicitly Christian.”

In light of those three differences, in Kagan’s view, the town cannot simply argue that its prayers are constitutional because the Court upheld different prayers in Marsh.  And when the town’s prayers are examined in their own right, she continued, they cannot stand.  Kagan took pains to point out that the town council meetings are not required to be “religion- or prayer-free.”  But the town is required to recognize that there are many different religions in the United States, and “to treat every citizen, of whatever religion, as an equal participant in her government.”  Providing equal treatment, she added, would not have actually been that hard:  town council members could tell the chaplains that the prayers should be non-denominational, or they could have invited clergy from all different faiths to give the prayers, rather than focusing almost exclusively on Christian ministers.  But it didn’t do either of those.

Although Justice Samuel Alito joined Justice Kennedy’s opinion for the Court, he too wrote a separate concurring opinion (which Justice Scalia joined) that addressed some of the points made by Justice Kagan in her dissent.  Perhaps most notably, Alito dismissed what he characterized as the dissent’s main objection – that the town could have avoided any constitutional problems by doing a better job in putting together a list of possible chaplains – as “really quite niggling.”  Alito reasoned that the town had not intentionally excluded synagogues, for example, from the list; the problem, Alito posited, was just that the town – like many other governments its size – can be a fairly “informal” and “imprecise” operation, with council members who have other full-time jobs, may not always be able to seek advice from experts in the field of constitutional law, and are generally trying to do the best they can.

With today’s decision, the Court now has three important decisions already in the books for the Term.  Over the next seven or eight weeks, the Court will issue several more, ranging from the constitutionality of the president’s recess appointments to the Affordable Care Act’s contraception mandate and cellphone privacy.  Will those cases prove equally divisive, or will the Justices surprise us?  When we find out, we’ll be back to break those decisions down in Plain English too.


Recommended Citation: Amy Howe, Tradition! Today’s legislative prayer decision in Plain English, SCOTUSblog (May. 5, 2014, 10:12 PM),