The History of Greece v. Galloway: Will Prayers Be Allowed at Town Meetings?

Last week’s Supreme Court hearing of a case challenging prayers before public legislative meetings will make a huge impact. Bill Burgess of the AHA’s Appignani Humanist Legal Center analyzes the case’s history and what the justices’ said during oral arguments.

The Supreme Court heard oral arguments last week in an important case involving the separation of church and state. The American Humanist Association’s Appignani Humanist Legal Center joined an amicus curiae brief filed with the Court on behalf of the AHA and nine other allied secular organizations supporting the plaintiffs.

The case is a challenge brought to the practice of the Town of Greece, New York, of opening its town council meetings with prayers delivered to the audience by invited clergy members selected from local congregations. The prayers have overwhelmingly been expressly sectarian in nature, making reference to Jesus Christ or using other particularly Christian language.  The plaintiffs are two local residents, one an atheist and the other Jewish, who attended town council meetings and felt excluded, perhaps intentionally, from participation in the local democratic process and worried that failure to participate in the prayers would harm their chances of convincing the council to take particular action. They filed suit, seeking an injunction to stop what they allege is violation of the Establishment Clause, the provision of the federal Constitution that mandates a separation of church and state.

Although they were initially unsuccessful at the trial court level, the Second Circuit Court of Appeals sided with them, ruling that the town’s “legislative prayer” practice was unconstitutional. The appeals court looked primarily to a 1983 Supreme Court decision, Marsh v. Chambers, the only one addressing the subject to reach the high court (before this case later did so). In Marsh, the Court upheld the practice of the Nebraska legislature of hiring a chaplain to minister to legislators and to offer prayers as part of its sessions. The Court emphasized, however, that chaplain’s prayers were nonsectarian in nature (i.e. that he had, after complaint, dropped all references to Jesus), and relied heavily on the fact that a similar practice had been approved by the First Congress and persisted to the present.

The Appignani Humanist Legal Center’s amicus brief argued that, at a minimum, the Supreme Court should affirm the 2nd Circuit’s decision finding sectarian legislative prayers unconstitutional. However, the brief went on to argue that the Marsh decision itself should be reconsidered because even nonsectarian prayers are divisive, and in particular pointed out that the Court’s reasoning relying on historical precedent to establish constitutionality was suspect, as a number of practices later found unconstitutional, such as racial segregation, had persisted for long periods in American history.

As shown by their engaged questioning of counsel for both sides during oral arguments, the Supreme Court is grappling with the practical difficulties and Constitutional pitfalls of legislative prayer. (A complete transcript is available here.) Justice Kennedy, for instance, expressed doubt about Marsh’s argument-from-history, asking the town’s attorney whether it is “simply history that makes” legislative prayer constitutional, even if “there’s no [other] rational explanation” and it is “just a historical aberration.” He later questioned whether the large variety of quasi-legislative local municipal bodies, such as a “utility ratemaking board” could rely on the same history to include prayers in their proceedings.

Justice Breyer, meanwhile asked him about a practical solution, asking whether the town could open the invocation opportunity to all religious groups, even including nonreligious citizens who would offer a secular invocation.  Finally, when questioning the plaintiff’s lawyer, the justices disagreed about whether courts can or should engage in analysis of the content of prayers to determine whether they are in fact sectarian in nature, with Justice Kennedy expressing concerns about government officials “editing prayers” and conservative justices emphasizing that even nonsectarian prayers exclude atheists and polytheists, and so are not an acceptable compromise.

The Court is not expected to issue a ruling in the case, Town of Greece v. Galloway, for several months.