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Good Faith Accommodations
On the Constitutionality of Legislative Prayer
Frank J. Colucci

This spring, the US Supreme Court decides whether a New York town’s practice of beginning board meetings with public prayer violates the First Amendment’s prohibition against establishment of religion. The arguments in Town of Greece v. Galloway force the Court to revisit its precedent upholding legislative prayer and to consider what practical accommodations governments must provide to citizens of different faiths.

In 1999, Greece (population 96,000, northwest of Rochester) replaced its moment of silence at the beginning of monthly board meetings with prayers, which were first led by the elected town supervisor. Later, town officials solicited local religious officials chosen from a local community guide to serve as a “chaplain of the month.” Over the next eight years, all chaplains were Christian. (A Jehovah’s Witness church and Buddhist temple within town borders were not listed in the guide.)  About two-thirds of town prayers mentioned Jesus Christ, the Holy Spirit, or the Trinity, and several concluded “in Christ’s name.” 

congressIn 2008, Susan Galloway and Linda Stephens—residents who attended town meetings to express concerns about public access cable television channels, the condition of public parks, and other issues—questioned this practice. That year the town began four of its monthly meetings with prayers from a Wiccan, a Baha’i minister, and a lay Jewish man. From January 2009, for the next eighteen months all prayers were led by Christians.

By then, Galloway and Stephens had filed suit in federal court. They initially argued the town intentionally discriminated against non-Christians in its selection of prayer-givers; on appeal, they emphasized that the prayer practice had the effect of government endorsement of Christianity.  Individual citizens attending town meetings are not mere spectators, as in Congress and most state legislatures, but active petitioners and participants. In this context, they argue, “religious minorities are pressed either to feign participation in an act of worship that violates their own beliefs, or to publicly display their dissent from majoritarian religious norms.”  

The Greece case is clarified and complicated by the US Supreme Court’s decision in Marsh v. Chambers (1983), which upheld Nebraska’s practice of having a state-paid Methodist chaplain lead the legislature in prayer. Based on “unambiguous and unbroken history of more than 200 years” dating to the First Congress, Chief Justice Warren Burger wrote, “there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.”  Nebraska’s practice showed “no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,” Burger wrote. “That being so, it is not for us to embark on a sensitive evaluation or to parse the content of a particular prayer.” Following Marsh, a federal district court upheld Greece’s prayer practice.

The Second Circuit Court of Appeals reversed, striking the prayer. Marsh v. Chambers remains good law, it ruled, but Greece’s prayer practice allied the town too closely with Christianity. The town “fails to recognize that its residents may hold religious beliefs that are not represented by a place of worship within the town.”  The town did not adequately publicize its willingness to accept volunteer prayer leaders or explain the purpose of its prayer practice. In addition, “most prayer-givers appeared to speak on behalf of the town and its residents, rather than only on behalf of themselves.”  The appeals court concluded “an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity.”

Greece appealed to the Supreme Court with support from the Obama Administration. “The government must allow the prayer-giver to deliver the prayer in accordance with his own religious beliefs,” the United States argues in its brief, “including by praying to his own religious deity and in his own idiom.”  While Marsh requires some determination whether a prayer is proselytizing or disparaging other religion, “it is not the place of the federal Judiciary, a Town Board, or Members of Congress to compile a list of religious words that may be used in legislative prayers and a list of religious words that may not.”

At Supreme Court oral argument in November 2013, the most searching exchanges explored the extent of accommodations local governments with prayer must provide. “If all that were left in the case were the question of you’re making a good faith effort to try to include others,” Justice Breyer asked the town’s attorney, “would you object to doing it?” Other justices asked whether it would be sufficient to require the town “to appeal to other religions who are in that area,” to publicize on its website not merely to churches but to the general public that any citizen could lead the prayer, and to tell each prayer leader in advance that the audience ‘is comprised of members of many different faith traditions.’” Douglas Laycock, Galloway’s attorney, argued Greece should “instruct the chaplains, keep your prayers non-sectarian,” avoid “points on which believers are known to disagree,” and remain “in the American context, the American civil religion.”

The ideal of an inclusive and even nonsectarian legislative prayer—an American civil religion—seems well established. The National Conference for Community and Justice (formerly the National Conference for Christians and Jews) publishes “Guidelines for Civic Occasions” with a section on “Public Prayer in a Diverse Society.” Because of “the public nature of the occasion,” leaders should engage in “Inclusive Public Prayer” that is “nonsectarian, general, and carefully planned to avoid embarrassments and misunderstandings.” Inclusive prayer “uses universal, inclusive terms for deity rather than particular proper names for divine manifestations”—phrases like “Almighty God,” “Source of All Being,” and “Creator God.” Public prayer should not be seen “as an opportunity to preach, argue, or testify.” Inclusive Public Prayer “seeks the highest common denominator without compromise of conscience.” Such inclusive public prayer remains “authentic” while it “enables people to recognize the pluralism of American society.”  Instructions similar to the NCCJ guidelines are provided to prayer leaders by thirty-six state legislatures and the US House of Representatives.

 

One apparently attractive path for the Court to resolve the Greece case is to reaffirm Marsh v. Chambers allowing for legislative prayers, while requiring that legislatures adopt affirmative policies toward inclusion. The town could appeal to the public, contact religious houses in nearby towns, and separate the prayer from the portion of the town meeting devoted to public petition and public comment. But attempts to require legislative prayer to be “nonsectarian” or “inclusive” raise concerns about government influence on ­religious officials and religious individuals.

One issue is whether the prayer-leader is perceived as speaking for the government or as a private person. Galloway’s attorney states, “they’re taking on a government function when they agree to give the invocation for the town board.” Providing guidelines is merely government “editing the content of government sponsored prayers.” But if, on the other hand, prayer leaders are acting primarily as individuals, Scalia stated, “people who have religious beliefs ought to be able to invoke the deity when they are acting as citizens.”

Requiring legislative prayers to be nonsectarian and inclusive compounds this concern, as it may move prayer leaders to employ language they would not normally use in worship. “Sanitizing legislative prayers of ‘sectarian’ references,” the State of Indiana argues in a brief supporting Greece, “deprives adherents of the chance to undertake religious exercise based on core beliefs, to the point where some otherwise willing citizens may forego offering legislative prayer entirely if they cannot do so according to their consciences.” The NCCJ recognizes that “some persons are reluctant to offer Inclusive Public Prayer. This position should be respected.” But government promulgation of instructions—even if intended to promote pluralism, diversity, and awareness—may have the opposite effect. “It is an insult to individual expression and religious exercise,” Indiana argues, “to permit prayers only by those who agree to pray in the government-ordered fashion.”

Fears of government supervision of prayers by religious officials and citizens seemed to drive Justice Kennedy. “Town councils like Greece can have prayers if they are non-provocative, modest, decent, quiet, non-proselytizing?” he asked at oral argument. Distribution of guidelines—and the implicit suggestion that the town decides who may be re-invited—to Kennedy “involves the State very heavily in the censorship and... the approval or disapproval of prayers.”

Kennedy’s concerns have roots in his majority opinion in Lee v. Weisman (1992), where the Court struck clergy-led prayer at a public school graduation as a violation of Establishment Clause. Kennedy’s opinion focused on the “real conflict of conscience faced by the young student… who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”

In Lee, Kennedy explicitly mentioned the government’s role in distributing the NCCJ Guidelines to religious officials. He concedes it may have been “a good faith attempt by the school to ensure that the sectarianism which is so often the flashpoint for religious animosity be removed.” Yet “the suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.” As laudable as finding “common ground” may be, the Constitution cannot “permit the government to undertake that task for itself.” Kennedy restated these objections in the Greece v. Galloway oral argument. If government chooses prayer-leaders and then provides guidelines to ensure their prayers are inclusive and nonsectarian, he suggested, “then you have the problem… that we are misrepresenting who we really are.”

 

Litigation over legislative prayer has already had an effect on some local governments. The appeals court ruling against Greece stated that although Marsh v. Chambers remains good law, “difficulties… may well prompt municipalities to pause and think carefully before adopting legislative prayer.” The rethinking already has occurred in legislatures which had previously adopted prayer. Under threat of lawsuit, Hawaii’s Senate became the first legislature to drop its prayer.  After the US Supreme Court decided to hear the Greece case, Mayor Thomas M. McDermott Jr., of Hammond, Indiana wrote on his Facebook page that his city’s practice of prayer at the opening of meetings—including references to “our Lord” and “Jesus”—was “not appropriate.” As McDermott told a local newspaper, “I am trying to avoid Hammond getting sued for violation of the First Amendment’s Establishment’s clause.” 

In deciding Town of Greece v. Galloway, the justices must choose between competing claims of history, inclusion, and individual liberty in a religiously pluralistic society. Over the past three decades, Supreme Court decisions involving public manifestations of religion have featured compromises allowing some holiday or Ten Commandments displays but not others, or dismissal on technical grounds (such as the recitation of the Pledge of Allegiance in public schools). But as Justice Kagan stated at oral argument in Greece, “every time the Court gets involved in things like this, it seems to make the problem worse rather than better.” After a barrage of questions about how “nonsectarian” prayers could be truly inclusive to all ­­people­—including atheists, devil worshippers, and polytheists—Galloway’s attorney eventually conceded “we cannot treat everybody, literally everybody, equally without eliminating prayer altogether.” The court is left with two real alternatives: follow his suggestion, or take refuge in history.

 

Frank J. Colucci is Associate Professor of Political Science at Purdue University Calumet, in Hammond, Indiana.

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