In a 5-4 decision with multiple opinions, the United States Supreme Court in Town of Greece v. Galloway, No. 12-696, 572 U.S. ___ (2014), has ruled that the Town of Greece’s practice of opening its monthly board meetings with prayer does not impose an impermissible establishment of religion.  It concludes that “legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of the [U.S Supreme] Court’s sessions.”

For years, the Town of Greece followed an informal method to select prayer givers, maintaining that a minister or layperson of any belief, including atheism, could give the pre-board meeting invocation.  The Town compiled a list of all congregations and invited them to lead the pre-board meeting prayers.  From 1999 to 2007, all of the participating ministers on the Town’s list were Christian.

Respondents Susan Galloway and Linda Stephens attended the Town’s board meetings and objected that the prayers violated the Establishment Clause.  They sued the Town and sought an injunction to limit the Town to only “inclusive and ecumenical” prayers that referred only to a “generic God.”  In support of their argument, the respondents identified some prayers that spoke in a distinctly Christian idiom:

“Lord, God of all creation, we give you thanks and praise your presence and action in the world.  We look with anticipation to the celebration of Holy Week and Easter.  It is in the solemn events of next week that we find the very heart and center of our Christian faith.  We acknowledge the saving sacrifice of Jesus Christ on the cross.  We draw strength, vitality, and confidence from his resurrection at Easter. . . .  We pray for peace in the world, an end to terrorism, violence, conflict, and war.  We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . .  Praise and glory be yours, O Lord, now and forever more.  Amen.”

Galloway and Stephens argued that the Town violated the First Amendment’s Establishment Clause by preferring Christians over others to give the prayers, and by “sponsoring sectarian prayers, such as those given in ‘Jesus’ name.’”  The District Court upheld the Town’s practice as consistent with the First Amendment, but the United States Court of Appeals for the Second Circuit reversed, holding that aspects of the Town’s prayer program, viewed in the totality of its circumstances, conveyed the message that the Town was endorsing Christianity over other religions in violation of the Establishment Clause.

The Supreme Court, in a majority decision authored by Justice Kennedy, reversed the Second Circuit’s decision.  Relying on Marsh v. Chambers, 463 U.S. 783 (1983), the Supreme Court found that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’”  The Supreme Court noted the Framers’ “benign acknowledgement of religion’s role in society” through the enactment of the First Amendment, and observed:

“Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgement of their belief in a higher power, always with due respect for those who adhere to other beliefs.”

The Supreme Court concluded that the Town of Greece did not violate the Establishment Clause because even though the prayers given prior to its board meetings were almost exclusively Christian, that was a result of the religious makeup of its population, rather than the Town actively seeking only Christians to give the prayers.  It also noted that the Town was willing to allow a person of any faith to give a prayer.  It found that legislative prayers need not be content neutral, as “[t]he tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom and find appreciation among people of all faiths.  That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition.”

Justice Kennedy writes that the inquiry remains fact-sensitive to consider both the setting in which the prayer is given and the audience to whom it is direct.  The Supreme Court cautions that a town may run afoul of the Establishment Clause “if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”  Even though a handful of prayers given in the Town of Greece disparaged “non-believers,” this did not transform the Town’s program into one seeking to promote Christianity over other religions, and the fact that prayers offended some individuals did not equate to coercion.

The Supreme Court’s decision in Town of Greece v. Galloway, No. 12-696, 572 U.S. ___ (2014), can be accessed here.