Greece, NY vs. Galloway
By Alex Saitta
January 6, 2014
I’m sure some of you are aware the US Supreme Court is hearing a prayer case, The Town of Greece, NY vs. Galloway.
There, the town council randomly selected clergy on a rotational basis to open their meetings with a prayer. Susan Galloway objected to the prayers, which were mostly Christian. She argued by allowing the prayers to be mostly Christian, the town supported one faith over others and that violated the First Amendment. The town lost in the 2nd Federal Circuit Court and sued Galloway in the US Supreme Court.
History and Definitions:
The Establishment Clause is the first of several tenants in the First Amendment “Congress shall make no law respecting an establishment of religion. . . .” That is immediately followed by the Free Exercise Clause "or prohibiting the free exercise thereof".
Translation, the government nor its agents can not favor one religion over another, nor can it prohibit private citizens from freely expressing their religious faith.
Marsh vs. Chambers is a 1983 US Supreme Court case that ruled deliberative bodies such as the US Congress, state legislatures, and local councils and boards can start their meetings with a prayer. The reasoning being, when the First Congress met in 1789, one of the first acts of the Senate and the House was to hire chaplains to open each session with a prayer. Days later the Congress ratified the Bill of Rights. The logic in Marsh was why would the Founding Fathers hire a chaplain and authorize such prayers and then days later make them illegal by passing the First Amendment? Clearly, the founders didn’t see the opening of such meetings with a prayer as a violation of the Establishment Clause.
Sectarian prayers are those that appeal to one faith or denomination, like prayers to Jesus, Muhammad, Buddha or Moses. Non-sectarian prayers are those that call on God, the Creator, the Almighty, etc.
Likely the Court will not reverse its 1983 ruling in Marsh, and it will continue to allow prayers at the start of government meetings.
Thus, the question in Greece v. Galloway is, must the government remain when it comes to the clergy prayers? This conservative viewpoint argues the Free Exercise Clause controls and the government can’t tell selected clergy (private citizens) how to pray and to whom.
Or does the government have the responsibility to sanitize the prayers of the clergy and insure they are non-sectarian? From this liberal viewpoint, the Establishment Clause controls and the clergy (now a temporary agent of government) can’t favor one religion over another.
The latter is how the 4th circuit ruled in Joyner v. Forsyth County, NC. This is the reason the opening prayers of government bodies in the 4th circuit (South Carolina and other states in the mid-eastern part of the US) must be non-sectarian.
My Personal Opinion & Reasoning:
This case demonstrates a gargantuan collision between the Establishment Clause and the Free Exercise Clause of the First Amendment of the US Constitution. The magnitude of this constitutional question is the primary reason the high court took the case.
The secondary reason was a practical one, specifically the disagreement between the sister circuits of 9th on the right, and the 2nd and 4th on the left in their verdicts in Rubin, Galloway, and Joyner, respectively. Such inconsistency and infighting among the circuits weakens the creditability of the federal court system and can not be allowed to go on indefinitely.
Listening to the oral arguments and examining the transcript, I believe the Supreme Court will decide the Free Exercise Clause controls, and the Town of Greece will prevail.
Time and again the justices were hung up on the issue of the government inviting in a private citizen (the clergy) to pray before the town meeting, and then reaching over his back and telling him how to pray and whom to pray to.
From Justice Roberts: Is there supposed to be an officer of the town council that will review [the prayers]? Do prayers have to be reviewed for his approval in advance?
Justice Kennedy: Well, so in other words the government is now editing the content of prayers... It just seems to me that enforcing that standard… involves the State very heavily in the censorship and the approval or disapproval of prayers… I mean, I'm serious about this. This involves government very heavily in religion.
Alex’s note: Kennedy is the swing vote and his words, “I’m serious about this” was the key phrase in the 71 page transcript. It demonstrated exactly what he is thinking and why. It appears Kennedy objects to the government establishing and then managing a sanitized religion for the public square. Creating a non-religious religion would be just as much a violation of the Establishment Clause as trying to establish Christianity or Hinduism as the state religion.
Even the moderates and liberals on the court saw problems with the government telling private clergy their prayers must be non-sectarian or spoken this way or that.
Justice Breyer: Congress has a set of [prayer] guidelines… Are those satisfactory to you [asking Galloway’s attorney]… If those are satisfactory to you, then I wonder, are they satisfactory to everyone? And you will find all kinds of different beliefs and thoughts in this country, and there will be people who say, but I cannot give such a prayer if I am a priest or minister or whatever in that particular religion. I must refer to the God as I know that God by name...
Justice Sotomayor: Assuming you hear the resistance of some members of the Court to sitting as arbiters of what's sectarian and nonsectarian, and I join some skepticism as to knowing exactly where to join that line…
Justice Kagen: … Part of what we are trying to do here is to maintain a multi-religious society in a peaceful and harmonious way. And every time the Court gets involved in things like this, it seems to make the problem worse rather than better…
The Here & Now:
Until January 2013, the Pickens County School Board asked students to open its monthly meetings with a prayer. After reading the laws and getting advice from the state Attorney General, two prayer attorneys and Christian groups like the ACLJ, the board majority and the administration realized that was illegal. That will remain illegal no matter the verdict in this case.
I don’t make the court rulings. I don’t agree with most of them, however, I’m sworn to follow them. In 1962 and again in 1963 the Supreme Court ruled the government can not ask students to pray.
Now at each school board meeting, students no longer give the prayer. In line with 4th circuit case law, a board trustee opens the meeting with a non-sectarian prayer like the state legislature and our county council.
If the Supreme Court comes down on the side of Greece, NY, the ruling will change the prayer landscape at government meetings nationwide. Such a ruling would reverse the 2nd and 4th circuit requirements prayers be non-sectarian. Board, councils and state legislatures will then have to decide if they want to adopt the method of Greece, NY (selecting clergy randomly to give the opening prayer) or come up with some other method that is in line with the Court ruling.
If I’m wrong and the Court rules with Galloway, supporting the 2nd and 4th circuit rulings, non-sectarian prayers before such government meetings will be the law of the land. In that case, local boards and councils as well as the SC state legislature will already be where they need to be.
The Supreme Court will hand down their verdict before June 2014.