Case:
This post was originally published in Nahmod Law and has been republished with the permission of the author.
Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?
The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It explained (emphasis added):
“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.
“What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”
The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.
Commentary
The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice ) Lemon test with its insistence on a secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.
What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?
The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.
In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.
I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.
But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?
My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.
(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).
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