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Supreme Court Upholds Town’s Practice of Opening Board Meetings with Prayer

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June 5, 2014

By Amy K. Dickerson

Last month, the U.S. Supreme Court ruled that a New York town’s practice of opening town board meetings with prayer did not violate the First Amendment. The decision provides guidance to school boards and other public bodies regarding when prayers of boards and other legislative bodies will be permissible and when they will be impermissible. Below is a full summary of the decision and the guideposts for public bodies provided therein.

In Town of Greece v. Galloway, the town supervisor often invited a local clergyman to the front of the room at the beginning of each town board meeting to deliver a prayer. According to the town, the prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. To solicit prayer givers, a town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town did not exclude any prayer givers based on their religion, yet nearly all of the congregations in town were Christian, and thus from 1999 to 2007 all of the participating ministers were, too. Typically the prayers included both civic and religious themes, but some ministers spoke in a distinctly Christian idiom and a few invoked religious holidays, scripture, or doctrine.

Two community members filed suit against the town, claiming that the town’s practice of opening its meetings with such prayers violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given “in Jesus’ name.” They sought an injunction that would limit the town to “inclusive and ecumenical” prayers that referred only to a “generic God” and would not associate the government with any one faith or belief. The District Court held that the town’s prayer practice was consistent with the First Amendment, finding that the town did not have an impermissible preference for Christianity, that the prayers’ references to Jesus and the occasional request that the audience stand for the prayer did not amount to impermissible proselytizing, and that the constitution does not require that legislative prayers be purged of sectarian content. The Court of Appeals for the Second Circuit reversed the District Court’s decision, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that the town was endorsing Christianity.

In a divided decision, the U.S. Supreme Court reversed the Second Circuit’s decision, holding that the town’s practice of opening the town board meetings with prayer did not have to be nonsectarian to comply with the Establishment Clause. The Court stated that to hold that prayers must be nonsectarian would force the legislatures that sponsor prayers to act as supervisors and censors of religious speech, “a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” The Court also held that the town’s prayer practice was constitutionally permissible because it comported with tradition, noting the long-standing history in the U.S. of opening legislative sessions with prayers. By placing the prayer at the opening of a legislative session, the Court acknowledged that it is meant to lend gravity to the occasion and reflect values long part of the nation’s heritage to invite lawmakers to reflect upon shared ideals and common ends. The Court also ruled that, so long as the town maintains a policy of nondiscrimination, the town was not required to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. Finally, the Court rejected the respondents’ argument that prayers conducted in intimate settings such as town board meetings—compared to those conducted in Congress and state legislatures—cause the public to feel compelled to engage in a religious observance. The Court did not find any evidence that the town’s citizens who disagreed with the prayer were compelled to join or approve its content. It also noted that the principal audience for these prayers was not the public but the lawmakers themselves.

Throughout its opinion, the Court provides various examples of constitutionally permissible and potentially impermissible legislative prayers, which may serve as an additional guidepost for school boards and other public bodies considering this issue. For example, while the Court held that the practice of having legislative prayers which are solemn and respectful in tone are likely constitutionally permissible, it noted that if the practice over time exploits to proselytize or advance any one faith or belief, or to disparage any other faith or belief, such a practice may not be constitutionally permissible. Absent such a pattern of prayers, however, a challenge based solely on the content of a prayer will likely not establish a constitutional violation. The Court also distinguished the town’s permissible legislative prayers from a situation where board members might direct the public to participate in the prayers or indicate that their decisions might be influenced by a person’s acquiescence in the prayer opportunity, which would likely not be constitutionally permissible. The Court also distinguished its decision regarding the town’s legislative prayers from a prior decision in which the Court held that prayer at a school’s graduation ceremony was impermissible, stating that in the graduation ceremony context, students were not free to leave the area in response to the prayer, and that students may be more susceptible to religious indoctrination or peer pressure than mature adults.  

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