Breaking — Supreme Court upholds legislative prayer in Town of Greece v. Galloway

This morning the Supreme Court held in Town of Greece v. Galloway, that the town’s practice of beginning legislative sessions with prayers does not violate the Establishment Clause of the First Amendment. It was a 5-4 decision, split along traditional right-left lines, though there is not a clear majority opinion.

Justice Kennedy wrote for the Court, joined by the Chief Justice and Justice Alito in full and Justices Scalia and Thomas in part.  Scalia and Thomas refused to join part Part II-B of Kennedy’s opinion, which concluded that a “fact-intensive” inquiry of the specific practice at issue in this case did not unconstitutionally coerce individuals to engage in religious observance. Justice Alito wrote a concurring opinion, joined by Justice Scalia. Justice Thomas wrote an opinion concurring in part and concurring in the judgment, joined by Justice Scalia in part. On the other side, Justice Breyer wrote a dissenting opinion for himself, and Justice Kagan wrote a dissent joined by Justices Breyer, Ginsburg, and Sotomayor.  The opinions are here.

Justice Kennedy’s decision appears to rest squarely on the Court’s decision in Marsh v. Chambers, which upheld the state of Nebraska’s practice of opening legislative sessions with a state-appointed chaplain.  Although the practice might appear to constitute an establishment of religion under the Lemon test, the Court in Marsh noted that such legislative prayers date back to the First Continental Congress and concluded that such a well-established tradition could not violate the Establishment Clause.   Thus unless the Court were willing to overturn Marsh, the only way to invalidate the prayer at issue here would be to conclude that it was more sectarian or more coercive.  Justice Kennedy’s opinion for the Court concludes:

The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.

Justices Thomas and Scalia did not join all of Kennedy’s opinion because they believe the Marsh test is too restrictive because it adopts an unduly broad conception of what constitutes “coercion.”  Justice Thomas, writing just for himself, also reiterated his belief that the Establishment Clause is “best understood as a federalism provision,” and constrains the federal government, but not the states.

Justice Kagan, writing for the four dissenters, sought to distinguish the prayers at issue here from those upheld in Marsh.  Her dissent begins:

For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will countas full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

I respectfully dissent from the Court’s opinion because Ithink the Town of Greece’s prayer practices violate that norm of religious equality—the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian. I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers, 463 U. S. 783 (1983), upholding the Nebraska Legislature’s tradition of beginning each session with a chaplain’s prayer.And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece’s town meetings involve participation by ordinary citizens, and the invocations given—directly to those citizens—were predominantly sectarian in content. Still more, Greece’s Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.

Justice Alito’s concurrence responds to the dissent, arguing that while Justice Kagan announces a narrow position — some legislative prayer is okay, but not the way it was done in the Town of Greece — “much of the rhetoric in that opinion sweeps more broadly.” According to Justice Alito, “the logical thrust of many of [Justice Kagan's] arguments is that prayer is never permissible prior to meetings of local government legislative bodies.”

The Supreme Court’s decision overturned an opinion of the U.S. Court of Appeals for the Second Circuit.  That opinion is here.  As readers may recall, the author of the Second Circuit opinion, Judge Guido Calabresi, caused a stir with his remarks about the case.  The code of conduct for federal judges provides that judges are not to comment on pending cases.

Back in September, my colleague Jessie Hill previewed the case for SCOTUSBlog here.

For more on the opinion, see Eugene’s post here.

[Note: This post has been updated with additional material, including excerpts from some of the opinions.]

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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