David L. Barkey
National Religious Freedom Counsel
David L. Barkey
In Town of Greece v. Galloway, the U.S. Supreme Court addressed the issue of legislative prayer for the first time since its 1983 Marsh v. Chambers decision. Claiming reliance on this decision, Justice Kennedy’s 5-4 plurality opinion (although the judgment garnered five votes, no other Justice signed onto the opinion in full) held that Marsh, in which the Court upheld a legislative prayer policy, is applicable to invocations before a town board. At issue in the Greece case was the Town’s informal invocation policy, which resulted in virtually all prayers at town board (“Board”) meetings being delivered by Christian clergy. And 85% of these prayers were overtly Christian. The plurality found no Establishment Clause violation, reversing the Second Circuit’s unanimous decision.
Although Justice Kennedy claims that the Court’s decision falls squarely within Marsh, it is in fact a vast expansion of the 1983 ruling. It sanctions sectarian legislative prayers of one faith to the exclusion of others except in the most egregious circumstances. And the ruling applies to legislative prayers whether they are given before Congress, a state legislature, or a town board. Justice Kagan’s spirited dissent reflects these realities, as well as a troubling disconnect between Justice Kennedy’s rationale and its real-life, detrimental implications for religious minorities seeking redress before local government.
Regrettably, the plurality opinion opens the door wide to overtly sectarian prayers before public meetings of government bodies. As detailed below, its new content limitations on legislative prayer are far more undefined and unworkable than Justice Kagan’s two-pronged approach to inclusive prayers. Undoubtedly, the majority’s tepid limitations on legislative prayer do not adequately protect those who are in religious minorities from feeling isolated, vulnerable, or like second-class citizens in their own communities. Furthermore, while the opinion is facially limited to legislative prayer, there are deep concerns that language from the decision taken out of context will be used by lower courts to further degrade constitutionally-mandated separation of church and state.
Marsh v. Chambers and Footnote 14
In the Marsh decision, the Court relied on the “… deeply embedded … history and tradition of this country” … “… opening of sessions of legislative and other deliberative public bodies with prayer” to carve out a legislative prayer exception to the Establishment Clause, and it applied this exception to uphold invocations before the Nebraska State legislature.
Although the Marsh majority referred to “other deliberative bodies,” the decision exclusively focused on the history and permissibility of legislative prayer before Congress and state legislatures. The Court based its legislative prayer exception on the historic fact that in 1789 “three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights.”
The content of legislative prayers, however, was not without limitation. Rather, the prayers at issue were permissible because, as detailed in Footnote 14, the legislature’s chaplain “removed all references to Christ after a … complaint from a Jewish legislator” and the “prayer opportunity [was not] exploited to proselytize or advance any one, or to disparage any other, faith or belief.” For decades, many legal scholars understood Marsh to mean that legislative prayers are permissible provided that they are non-sectarian or inclusive in nature.
Over the last 30 years, U.S. District and Circuit Courts have been all over the map as far as the meaning of Marsh. And a number of decisions have applied the decision to uphold prayers in the context of municipal boards and commissions. Prior to the Greece decision, however, the Supreme Court never addressed this issue.
The Plurality Decision: Expanding and Perverting Precedent
Typically, in the town of Greece, New York, only around ten citizens attended Board meetings where the Christian invocations occurred. The overwhelmingly Christian nature of the prayers resulted from an informal policy by which a town employee would call local congregations until an available clergy member was found to serve as “chaplain of the month.” No instruction or guidance was given to clergy on the content of their prayers. Despite the Board’s obvious alignment with Christianity, the Supreme Court plurality validated its invocation policy under Marsh and also found that it did not result in unconstitutional religious coercion.
As an initial matter, Justice Kennedy, with virtually no historical corroboration, summarily found that the Marsh exception applied to the Board. Indeed, the parties provided no information about the history of prayer before local legislative bodies and Justice Kennedy cited to only one reference dating back to 1909. To reach this conclusion, Justice Kennedy engaged in circular reasoning by relying on Marsh’s finding of a 200-year “unambiguous and unbroken history” of Congress and subsequently state legislatures opening sessions with prayer.
Turning to the overtly Christian content of the Board’s prayers, Justice Kennedy dismissed the significance of Marsh’s Footnote 14 as merely the Court “observ[ing] the practical demands” placed on the legislature’s chaplain choosing “to appeal to more members, or at least to give less offense to those who object.” Eliminating the import of Footnote 14, Justice Kennedy announced that Marsh never required legislative prayer to be non-sectarian. He reasoned that members of the First Congress were “accustomed to invocations containing explicitly religious themes,” and the Christian nature of those prayers “must not be dismissed as a relic of a time when our Nation was less pluralistic than it is today.” Rather, today’s religious diversity should be acknowledged “by welcoming ministers from many creeds.” Justice Kennedy’s endorsement of religious diversity is one of the few points of agreement between the plurality and Justice Kagan’s dissent. It, however, is illusory as religious diversity is nowhere to be found in the new standard announced by Justice Kennedy.
The plurality further rationalized that prayers could be sectarian based on free speech principles. According to Justice Kennedy, no prayer can be “inclusive beyond dispute.” Indeed, any attempt to make a legislative prayer inclusive would wrongly apply the First Amendment as a “majority rule” that defines “permissible categories of religious speech.” Once the government “invites prayer into the public sphere, government must permit a prayer giver to address his or her own God … as conscience dictates.”
Justice Kennedy’s free speech purism, however, was short-lived. The very next paragraph of the decision paradoxically set forth new but exceedingly narrow content limitations: a prayer may “fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort” where “invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”
Based on these limitations, the plurality issued a new, far broader standard on permissible legislative prayer. Provided that a legislative body “maintains a policy of nondiscrimination” as to prayer-givers, “the content of a prayer will not likely establish a constitutional violation” unless there is a “pattern of prayers that over time denigrate, proselytize, or betray impermissible government purpose.” Applying this standard, Justice Kennedy found the Board’s prayer policy permissible.
The plurality then rejected claims that the Board policy resulted in religious coercion of meeting attendees. It purported to base its analysis on a fact sensitive inquiry that looked at the setting of legislative prayers and the audience for them. Despite the fact that the chaplain of the month customarily gave the invocation with his or her back to Board members and called upon the entire room to pray, Justice Kennedy astonishingly determined that the purpose of the prayers “is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers” and therefore the “principal audience” for the Board invocations is the “lawmakers themselves” and not the public.
Despite the Board meetings’ customary low public attendance, the plurality also determined that the Board policy did not dissuade members of the public from leaving the room during the prayer or arriving late to avoid it. Indeed, it found that just like state legislators, members of the public were free to enter or leave the Board meeting at their pleasure. So “nonbelievers choos[ing] to exit the room during a prayer … would not stand out as disrespectful or even noteworthy.”
Justice Kagan’s Dissent: Creating an “Untenable Choice”
Justice Kagan’s powerful dissent exposed the plurality’s opinion as being well beyond Marsh’s holding, as well as the fallacy of its rendition of the facts. As a starting point, Justice Kagan took no issue with the holding of Marsh. However, she explained that in Marsh, the prayer “was addressed to legislators alone, in a proceeding in which citizens had no role.” However, the Board has a “hybrid” role that includes legislative and constituent adjudicative functions. And critically, Marsh’s holding “hinged on the view ‘that the prayer opportunity ha[d] [not] been exploited to proselytize or advance any one … faith or belief;’ had it been otherwise, the Court would have reached a different decision.” Focusing on these significant differences, Kagan concluded that:
None of the history Marsh cited – and none the majority details today – supports calling on citizens to pray, in a manner consonant with only one single religion’s beliefs, at a participatory public proceeding, having both legislative and adjudicative components.
According to Kagan, the plurality’s expansion of Marsh creates an untenable choice for citizens that divides them along religious lines and thereby offends the First Amendment: pretend to pray in a faith not of your own, or decline to join the prayer or leave the room at the very moment when citizens need to petition their government.
To Kagan, a correct reading of Marsh requires that where “citizens of all faiths come to speak to each other and their elected officials in a legislative session” prayers should “include, rather than serve to divide.” And achieving inclusivity is a straightforward task: instruct chaplains to speak in non-sectarian terms common to diverse faiths, or invite clergy from many faiths, so that the government does not align within one faith and “the effect of even sectarian prayer is transformed.”
In refuting Justice Kennedy’s rejection of the religious coercion claims, Justice Kagan effectively argued that the plurality misapprehended the facts of the case and failed to follow its own fact-sensitive inquiry standard. She pointed out that in addition to the significant differences between the functions of state legislatures and local government, and the fact that virtually all the prayers before the Board were Christian in nature, the invocations were in fact directed to the public and not lawmakers.
Furthermore, the plurality’s misplaced reliance on the Board’s non-discrimination policy could not cure the constitutional violation. The policy was in name only because the Board virtually never offered the “chaplain of the month” role to non-Christian persons and never gave guidance to clergy to be more inclusive of other faiths. The Board’s resulting alignment with one faith was significant and constitutionally offensive because the prayers “express beliefs that are fundamental to some, foreign to others – and because that is so they carry ever-present potential to exclude and divide.”
Justice Kagan astutely concluded her dissent by stating that “[w]hen the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”