Many legislative bodies throughout the United States, including city councils, state legislatures, and Congress, begin sessions with ceremonial religious prayer that often includes references to sectarian Christian themes, including "Jesus Christ" and the "Holy Spirit." In Town of Greece, N.Y. v. Galloway (2014) — U.S. —, the United States Supreme Court held that such prayers do not violate the Establishment Clause of the First Amendment, as long as the legislative body has a policy of nondiscrimination when selecting the prayer givers, the prayers themselves do not show a pattern of disparaging nonbelievers, and the practice does not coerce participation by members of the public.
Greece, a town in upstate New York with a population of 94,000, began its monthly town board meetings with a moment of silence until 1999, when the newly elected town supervisor decided to replicate the prayer practice he found meaningful while serving in the county legislature. Following the roll call and the Pledge of Allegiance, the town supervisor would invite a local clergyman to the front of the room to deliver an invocation. The purpose of the invocation was 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."
The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. 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 eventually compiled a list of willing "board chaplains" who had accepted invitations and agreed to return in the future.
The town at no point excluded or denied an opportunity to a would-be prayer giver. Greece's leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007 all of the participating ministers were too. The resulting prayers contained both civic and religious themes. Some of the ministers spoke in a distinctly Christian language, including references to the "Holy Week and Easter" and the "sacrifice of Jesus Christ on the cross."
The Plaintiffs were town residents who attended a town board meeting to speak about issues of local concern and objected that the prayers violated their religious views. After Plaintiffs complained, the town invited a Jewish layman and the chairman of the local Baha'i temple to deliver payers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation as well.
Plaintiffs brought suit in District Court, alleging that the town's practice violated the First Amendment's Establishment Clause by sponsoring sectarian prayers, such as those that referenced Jesus' name. Plaintiffs contended that such prayer was permissible only if nonsectarian references to a "generic God" were employed.
The District Court rejected the Plaintiffs' argument and upheld the town's prayer practice. The Court of Appeals for the Second District overturned the decision, holding that the "steady drumbeat" of sectarian Christian prayer tended to affiliate the town with Christianity and alienated nonbelievers. The town appealed.
In a 5-4 decision, the Supreme Court ("Court") held that the town's invocations did not violate the Establishment Clause. In reaching this decision, the Supreme Court relied on the longstanding practice of many government entities to begin sessions with ceremonial prayer. "That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society."
The Court also rejected Plaintiff's contention that only "nonsectarian" prayer referencing a generic God was permissible. Instead, the court opined that it "acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds." Furthermore, the Court held that a rule that only permits nonsectarian prayer would have the effect of forcing legislative bodies to censor religious speech.
The Court also held that isolated examples of disparaging comments about nonbelievers would not likely result in a violation of the Establishment Clause, as the constitutional analysis "requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer." "Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation."
Based on this analysis, the Court determined that the town's practice of inviting a predominantly Christian group of ministers to lead prayer did not violate the Establishment Clause. "The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve a religious balancing."
Finally, the Court held that the town of Greece's invocation policy did not "coerce participation by nonadherents." The Court noted that the prayer was addressed to the lawmakers themselves, not members of the public. The Court also noted that members of the public were not singled out for nonparticipation and there was no indication that the board's decisions would be influenced by a person's acquiesce to the prayer. The public at the board meetings were not a captive audience, as persons during a board meeting freely move in and out of such meetings without notice. Based on this, the Court distinguished Greece's board meeting prayer from a prayer at a graduation ceremony which is prohibited by the Establishment Clause since it is directed to minors under close supervision.
What This Means To You
Legislative bodies, including school boards, may permit invocations before their meetings without violating the Establishment Clause of the First Amendment. The invocations may include references to religious themes (e.g., Jesus Christ, Moses, Allah, etc…), but the invocations should not denigrate nonbelievers and the legislative bodies may not discriminate against prayer givers based on their belief (or lack thereof) or take actions that coerce public participation in any way. This permissible prayer does not extend to graduation ceremonies or other school events. All legislative bodies in California (not just school boards) should consult with counsel because of more restrictive provisions within the California Constitution.
If you have any questions or concerns regarding this Legal Alert, please contact one of the attorneys listed below or the attorney with whom you usually consult.
Jeffrey A. Mitchell | 916.321.4500