Religious Liberty and Freedom of Conscience

Town of Greece v. Galloway (2014)

  • May 17 2018

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Whether holding opening prayer at local board meetings violates the Establishment Clause of the First Amendment, which prohibits Congress and the states from establishing a religion.

Beginning in 1999, the town supervisor of Greece, New York, invited local clergymen to deliver religious invocations at the beginning of each town meeting. To find speakers for each month’s meeting, a town employee called local clergymen listed in a local directory and asked if they’d like to give the invocations as unpaid volunteers. Although most of the local clergymen were Christian, and although the prayers often had Christian themes or undertones, at no point did the town exclude or deny persons of any religious or non-religious persuasion—including atheists—from giving the invocation. The town neither reviewed prayers beforehand nor provided any guidelines for content. The prayers were intended merely to place board members in a solemn and deliberate state of mind, to invoke divine guidance, and to follow a tradition long practiced by Congress and dozens of state legislatures.

After respondents Susan Galloway and Linda Stephens complained that the prayers were “offensive” and an affront to a “diverse community,” the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers, and they accepted the request of a Wiccan priestess to also give the invocation. Respondents nonetheless sued, alleging the town violated the First Amendment’s Establishment Clause by preferring Christian prayer-givers over others.

The Court Below
In 2010, Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They requested an injunction that would limit prayer to “inclusive and ecumenical” prayers that referred only to a “generic God.” The court dismissed the suit, writing that the town did not violate the Establishment Clause. See the opinion here:

Galloway v. Town of Greece, 732 F. Supp.2d 195 W.D., N.Y. 2010

Galloway appealed to the Second Circuit Court of Appeals.

In 2012, the Second Circuit Court of Appeals reversed the lower court’s ruling, writing that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. See the opinion here:

Galloway v. Town of Greece, 681 F.3d 20 2d Cir. 2012

The town of Greece appealed to the Supreme Court, which agreed to hear the case. See the opinion here:

Greece v. Galloway, 572 U.S.  2014

Question before the Supreme Court
“Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity[?]”

CCJ filed an amicus curiae brief in support of the Town of Greece

The Free Exercise and Establishment clauses in the First Amendment were not meant to root out any semblance of religion from state or federal government institutions or practices. Rather, they were added to the Constitution to ensure that the federal government would not interfere with the individual freedom to practice a religion or interfere with state religious establishments. Colonies had long sanctioned particular religions within their borders, providing havens for individuals of varied sects seeking religious freedom.

The failure of the proposed constitution to secure explicitly individual rights alarmed many Antifederalists, and they were concerned that the federal government might try to impose a national religion. Four states thus submitted amendment proposals with their notices of ratification, which were later reflected in the First Amendment: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The application of this provision to state governments via the 14th Amendment must be understood as protecting the authority of the states, to the maximum extent possible consistent with individual liberty.

The Founders’ understanding of the clauses as a protection for individual religious liberty is reflected in the practices of the three branches of government. Neither the executive, legislative, nor judicial branches viewed public acknowledgements of religion as a threat to religious liberty. Rather, public prayers and practices were and are still common. Even Thomas Jefferson, who is often cited as a proponent of separation of church and state, invoked God in his inaugural address. Modern-day presidents continue to publicly invoke God and support prayer vigils. The Supreme Court continues to open its sessions with the expression, “God save this Honorable Court.” The national legislature’s religious invocations have been especially pronounced. To this day, Congress still has a paid chaplain, and both chambers regularly hold prayer breakfasts. Religious figures from major faiths, the motto “In God We Trust,” and other religious imagery are engraved and imprinted on our money and throughout the Capital building.

The Lemon/Endorsement Test sometimes used in religion cases does not advance the purpose of individual liberty in religion. It is inconsistent with the true meaning of the religion clauses. Courts apply the Lemon test to laws to determine whether they violate the Establishment Clause, and the test is composed of three “prongs”: the statute must have a legislative purpose; the principal effect of the law must not advance or inhibit religion; and the statute must not have “excessive government entanglement” with religion. Members of the Supreme Court have noted that a strict application of this test would “invalidate scores of traditional practices recognizing the place religion holds in our culture,” and lower courts have applied the test inconsistently. Five Supreme Court justices have questioned its use, with some calling for its complete overturn.

The Court instead should apply the Marsh Test in keeping with the original understanding of the clauses. In Marsh v. Chambers 1983, the Supreme Court ruled that the Nebraska legislature’s opening of its sessions by a paid chaplain did not violate the Establishment Clause. The Court distinguished legislative prayer from establishment of religion by noting the prayer was “simply a tolerable acknowledgement of beliefs widely held among this country.” This understanding is in keeping with the country’s rich religious heritage.

Government coercion of individuals or interference with an existing religious organization is needed for a law to be considered an unconstitutional “establishment” of religion. The Lemon test is a failed experiment. Instead of protecting individuals from coercion, the test has been used as a weapon to purge religion from the public square. It is time to return to the original understanding of the amendment as a protection for individual freedom and religion. The appropriate standard for judging laws on establishment grounds must focus on preventing governmental coercion of a particular belief or a particular church. The absence of such coercion or interference with ecclesiastical decisions, as seen in this case, supports the constitutionality of legislative prayer.

Final Outcome
The Supreme Court ruled in favor of the Town of Greece, holding that the town’s practice of beginning legislative sessions with prayers did not violate the Establishment Clause. The practice was in keeping with longstanding traditional prayers, the town did not discriminate against minority faiths in determining the speaker, nor did it coerce participation.

Although the Court ruled in favor of CCJ’s party and similarly looked at Marsh as a precedent, it took a narrower approach than what CCJ was urging. The Court largely held that prayers were acceptable for the above reasons, while CCJ essentially argued that the Court should rely primarily on the “no coercion” principle: in the absence of coercion, the content of legislative prayer is beyond the control of the judiciary. In other words, the local government’s authority to hold whatever prayers it wishes should remain intact as long as it does not infringe on individual liberty via coercing participation in prayer. Whether traditional or not, the content of the prayer is irrelevant.