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The United States Supreme Court recently held by a narrow 5-4 majority in Town of Greece v. Galloway that a town’s practice of opening public meetings with a religious prayer was not a violation of the Establishment Clause of the First Amendment.  The Court ultimately found the practice valid because the town allowed any religious group to conduct the prayer and because, even though all such prayers were Christian, the town was not trying to promote Christianity by the practice.

In some ways the Greece decision was a continuation of earlier Supreme Court decisions that validated the inclusion of religious prayers and references in public meetings, so long as the public body was not promoting or discriminating against certain religious beliefs.  The Greece majority cite the case of Marsh v. Chambers to support the proposition that an opening prayer by a state-paid chaplain was a “tolerable acknowledgement of beliefs widely held.”  The majority then relied on Lee v. Weisman for the premise that public invocations must not use only generic, non-specific religious references because “[t]he suggestion that government [must] establish an official or civic religion as a means of avoiding the establishment of religion  with more specific creeds strikes us as a contradiction that cannot be accepted.”  In other words, by requiring prayers to be non-specific, the majority held that the government would be impermissibly interfering with specific beliefs.  The majority also recognized that the Town of Greece, located in upstate New York, had identified “all of the congregations within its borders” as possible participants in the prayer invocation, thus there was no violation because the lack of actual religious diversity was a reflection of the Town’s demographic composition and not a discriminatory approach to which organizations were allowed to conduct the prayer.

The main dissent challenged that the nature of Town meetings was such that individuals who may not subscribe to a Christian belief as was presented through the prayers, may unnecessarily feel like an outsider addressing the Town officials with an individual concern, or may feel like they have to pretend to adhere to the religious belief presented to them.  Several quotes from actual Town of Greece prayers are used by the dissent to anecdotally demonstrate its concern about the over-entanglement of specific religious beliefs in a government proceeding, such as if a judge asked a clergyman to begin a trial invoking “[t]he saving sacrifice of Jesus Christ on the cross.  We draw strength from his resurrection at Easter.”  The main dissent also distinguished the convocation-type prayer addressed to Nebraska’s state legislature in Marsh from the message directed at public attendees in the Town of Greece, to demonstrate that the government was allowing specific religious content to target public attendees at large.

There are an array of other constitutional issues addressed by various Justices, and there are two separate concurring opinions and two dissenting opinions.  The arguments and nuances, and cases cited by the various written opinions are much more varied than these few paragraphs can fully encapsulate, and this article is intended to provide a functional summary of the main arguments and ruling.  For example, Justice Thomas’ concurring opinion challenged whether the Establishment Clause even applied to the states and, derivatively, to local governments.

Local governments are cautioned that while the decision seemingly permitted the inclusion of non-preferential religious prayers at public meetings, any one of a number of factual differences with the Town of Greece scenario may yield a different outcome.  In fact, all five of the opinions authored by the various Justices reference that the decision hinged greatly on specific facts in the Town of Greece’s meetings and practices, acknowledging that variations in the facts could alter the outcome of the case.  It is also worth noting that the practice of having a religious prayer in the Town of Greece was in place for several years before it was challenged, and a great deal of the opinions expressed focused on the tradition of public prayers before government meetings.

Brad Stewart

Author: Brad Stewart