The relationship between religion and the government in the United States is a complicated one.  The First Amendment states that “Congress shall make no law respecting an establishment of religion. . .”  Many have interpreted this this to mean that there must be a separation of religion and government in all aspects. Yet there are several instances where religion may intrude on government, such as putting “In God We Trust” on money or prayers before legislative sessions.  On last Monday, the U.S. Supreme Court decided a controversial case involving legislative prayer.  For information about the latest legal developments, please continue to visit our blog. If you have a legal issue, please call our toll-free number (855) 977-1212 for a FREE CONSULTATION.

The Supreme Court issued an opinion in Town of Greece v. Galloway that held that the Town’s practice of inviting local community religious or laypeople to give a Capitol Buildingprayer before their monthly session was constitutional.  The majority opinion said that it was following the precedent from Marsh v. Chambers (1983) where the Supreme Court upheld legislative prayer as it was practiced in the Nebraska legislature.  But both of the dissenting opinions dispute that.  The controversy of the case is illustrated by the fact that the decision was five to four and that five different justices wrote opinions in this case.  One of the few points of agreement between the justices was that this was a “fact-sensitive” case.

In 1999, the Town of Greece replaced the moment of silence prior to their monthly town council meetings with a prayer by a resident religious leader or layperson. The town found these prayer-givers by looking through a Community Guide developed by the Greece Chamber of Commerce for local religious institutions. Town of Greece employees then called the institutions and invited the minister to give a prayer before the Town Council meeting.  Eventually, the Town employees developed a list of those who previously gave prayers and used that list to invite future prayer givers.  The Community Guide only listed Christian churches since these were the only religious institutions that were located in the town limits, except for a Buddhist temple that is in the town limits but has a Rochester address.  Several Jewish temples serve Jewish residents of the Town of Greece, but are located just outside of the city limits.  This set of events led to the prayers before the Town Council meetings of Greece being almost exclusively Christian since 1999.

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From 1999 to 2008, all the speakers who lead a prayer before the Town Council meeting were exclusively Christian.  Moreover, the prayers given by these Christian religious leaders were sectarian in nature rather than being inclusive of other faith traditions.  The Christian prayers before the Town Council would invoke Jesus Christ, the Holy Spirit and the Father and would also otherwise mention Christian themes.  After the plaintiffs in this case complained in 2008, the Town Council had four non-Christian speakers conduct the prayer before the Council meeting.  The Town invited the Chairman of the local Baha’i Congregation on its own initiative and then invited two Jewish laypeople and a Wiccan priestess after they inquired about participating.  Since those four non-Christian prayer-givers, there have been no other non-Christians conducting the prayer before the Town Council meetings. The Town and its employees say that they are open to having people of any faith participate in the prayer-giving and would allow anyone who asked to give a prayer to do so.

The majority opinion by Justice Anthony Kennedy and the two concurrences by Justices Clarence Thomas and Samuel Alito held that the prayer before the Council meeting was constitutional and the town needed to do no more to prevent a First Amendment violation.  Also, the Court held that the invocations did not coerce participation by non-adherents.  The plaintiffs in the suit asked the Court to require that a “nonsectarian” prayer be given.  Therefore, Justice Kennedy first reviewed the role of prayer at legislative sessions throughout U.S. history.  He found, as the Marsh Court found, that there is an unbroken tradition from the First Congress of inviting clergy to give prayers before legislative sessions.  Justice Kennedy also found that while some institutions like Congress request that speakers be aware of different faiths in their audience the history of legislative prayers from the beginning of the country to today is full of sectarian references.  The Court therefore rejected the plaintiffs’ assertion that a legislative prayer must be “nonsectarian” or “inclusive and ecumenical.”

In addition, the plaintiffs argued that the Town must be more diverse in the religion of the speakers at the invocation.  As mentioned above, the Town has had only 4 non-Christian prayer-givers at the invocation before the monthly Town Council meeting.  The plaintiffs felt that this indicated that the legislative prayer before the Town Council meeting impermissibly promoted Christianity in violation of the Constitution’s Establishment Clause.   The Court felt that the Town did not need to do more to promote a more diverse group of speakers.  The majority opinion explained that if the Town were to become more discerning in who are its speakers then it could lead to impermissible actions in order to maintain a religious balancing.  The Court said that requiring the Town to have more diverse speakers could lead to an entanglement that the Establishment Clause was designed to avoid.

Lastly, the Court held that the Town of Greece’s invocation did not force participation by non-adherents. The Court looked at Marsh and saw that in that case the legislative prayer’s audience were the representatives in the legislature. The Court stated in Marsh that the public are not participants, but only observers and that the legislative prayers before Congress or the state legislatures are “an internal act” of the legislature.  Therefore, the Court stated that the non-adherents at the Council meeting could not be forced to participate in the invocation because the invocation is not for the public, but for the members of the Town Council.

This case also had two dissents.  The principal dissent was by Justice Elena Kagan. In her dissent, Justice Kagan disputes several points in the majority opinion, but primarily she attacks the Court’s assertion that the Town needed to do no more to expand diversity of the speakers.  Justice Kagan also attacks the validity of the claim that the invocation is not directed at the public of the Town Council meetings.  

First, Justice Kagan asserts that the Establishment Clause requires the Town to ensure greater diversity in the speakers.  Justice Kagan does not dispute that a local community like the Town of Greece may conduct a legislative prayer, but she holds that the Town’s current practice violates the Establishment Clause.  Justice Kagan finds that the failure to include a greater number of speakers from different faith traditions to be a violation of the Establishment Clause because the Town is impermissibly promoting Christianity.  Moreover, the primarily Christian speakers combined with a target audience that includes the public increases the significance of the violation, according to Justice Kagan.

Justice Kagan disputes the majority’s assertion that the target audience of the invocation prior to the Town Council monthly meeting includes only the Town Council members.  Justice Kagan, unlike the majority, describes how the Town Council meeting invocations proceed.  In her description, Justice Kagan points out that the religious speaker will ask all to pray without telling people they do not have to participate.  In addition, the speaker is facing the public with the members of the Town Council seated behind him/her and that there is likely less than 20 people seated in the publicly available chairs.  Finally, Justice Kagan notes that these Town Council’s have both legislative and adjudicative functions.  

The description Justice Kagan provides in her dissent demonstrates many ways in which the Town Council invocations and the legislative prayers in the Nebraska legislature differ.  The most important though that she notes is that the audience is different.  In Marsh, the religious speaker addressed the members of the legislature and the public were in a gallery one level above the floor and were not allowed to participate in the legislative proceedings.  Here, the religious speaker addresses the public with the members of the Town Council to his/her back and the public are encouraged to participate in both the legislative and the adjudicative functions of the Town Council.  Justice Kagan finds these factual distinctions highly relevant and indicative that the audience of the Town of Greece invocations is actually the public and not the Council members.  In Justice Kagan’s opinion, this completely changes the analysis and therefore further demonstrates that the Town of Greece’s prayers violate the Establishment Clause.

Thus, despite vigorous opposition from the dissents, the Court ruled that the Town of Greece’s legislative prayer did not violate the Establishment Clause.  According to the majority, a legislature will only need to require that the prayer will be solemn and respectful in tone, which is a constraint that will derive from the nature of the proceeding.  For Free Accident Lawyer Consultation please call our toll-free number (855) 977-1212 no cost for you.