Excerpts Greece NY Opinion

Excerpts Greece NY Opinion

By Alex Saitta

August 10, 2014

The US Supreme Court ruled on the case Greece, NY v. Susan Galloway, in May, ruling on the way deliberative bodies can open their government meetings in prayer. If you don't want to read the 80 page opinion, for your benefit, below I outlined the 8 key points of the majority opinion.

The school board of Pickens County asked the Attorney General for an opinion on the selection process of the clergy. We asked for that opinion about 3 weeks ago, and we are waiting on their response.

I. Facts Of The Case:

Following the roll call and recitation of the Pledge of Allegiance, Auberger (town supervisor) would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board’s “chaplain for the month” and present him with a commemorative plaque. [Opinion, pages 1 and 2]

… 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. [page 2]

The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. [page 2]

Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content

After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha’i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation [pages 3 and 4].

The prayer was intended 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. [page 4]

II. District Court Ruled With Greece, NY (2^nd Circuit Later Reversed):

… the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town’s congregations, rather than an official policy or practice of discriminating against minority faiths. The District Court found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity. [page 4]

The District Court also rejected the theory that legislative prayer must be nonsectarian.

The court began its inquiry with the opinion in Marsh v. Chambers, which permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” With respect to the prayer in Greece, the District Court concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It located in Marsh no additional requirement that the prayers be purged of sectarian content. [pages 4 and 5]

By welcoming many viewpoints, the District Court concluded, the town would be unlikely to give the impression that it was affiliating itself with any one religion. [page 6]

III. 1983 Marsh v. Chambers Supreme Court Precedent:

The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. [page 6]

...reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. [page 6]

The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. [page 7]

… local legislative bodies open their meetings with prayer, this practice too has historical precedent. [page 7]

“In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society.” [page 7]

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. [page 8]

In the 1850’s, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer; no faith was excluded by law, nor any favored, and the cost of the chaplain’s salary imposed a vanishingly small burden on taxpayers [page 8]

Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. [page 8]

IV. Non-Sectarian Prayers Not Required By Clergy:

An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court’s cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could “coexis[t] with the principles of disestablishment and religious freedom.” [page 10]

The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. [page 10]

The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds. [page 10]

The contention that legislative prayer must be generic or nonsectarian derives from dictum in County of Allegheny, that was disputed when written and has been repudiated by later cases. [page 11]

Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. [page 12]

Nor did the Court imply the rule that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed. [page 12]

To the contrary, the Court instructed that the “content of the prayer is not of concern to judges,” provided “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” [page 12]

Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. [page 13]

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 [page 13]

....arguing that “untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”). [page 13]

Respondents argue, in effect, that legislative prayer maybe addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. [page 13]

Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian. [page 14]

The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that 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. [page 15]

Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” [page 15]

Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith. [page 16]

V. Greece’s Clergy Selection Not Too Narrow:

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. [page 17]

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. [page 17]

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 religious balancing. [page 17]

The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” Lee, a form of government entanglement with religion that is far more troublesome than the current approach. [page 18]

… respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violations not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. [page 21]

VI. The Target Audience Of The Prayers:

The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing. [page 19]

Marsh described the prayer exercise as “an internal act” directed at the Nebraska Legislature’s “own members,” [page 19]

But their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers. [page 20]

The analysis would be different 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. [page 20]

Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive [page 20]

[Prayers] meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. [page 14]

These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. [page 16]

VII. Galloway Claim She Felt Offense/ Coercion:

… respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violations not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum… [page 21]

… the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree [page 21]

But in the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate. [page 22]

Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even, as happened here, making a later protest. [page 22]

Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. [page 22]

VIII. Conclusion Of The Majority Of Justices:

… the Court is not persuaded the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its citizens to engage in a religious observance. [page 19]

The inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed. [page 19]

It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews. [page 19]

That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content. [page 19]

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. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer.

If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose [pages 14 and 15]