The Supreme Court’s city council prayer decision

[Note also Jonathan's post, which takes a somewhat different approach than this post does, though I don't think there's any substantive disagreement between us.]

A few thoughts about today’s Supreme Court opinions in Town of Greece v. Galloway, which is both narrow in scope (see item 5) and even in the zone of disagreement among the Justices (see items 1-3).

1. The Court is unanimous in its view that, generally speaking, some legislative prayers are constitutionally permissible. In Marsh v. Chambers (1983), the Court split 6-3 on the subject, with Justices Brennan, Marshall, and Stevens arguing that such prayers generally violate the Establishment Clause (though 20 years before then, Justice Brennan — in voting to strike down school prayers — suggested that legislative prayers are allowed). But now all nine Justices agree with the Marsh result; even the dissent says, “pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone.” Indeed, the dissenters say they agree with Marsh, and don’t just follow it as a precedent:

[U]nder Marsh, legislative prayer has a distinctive constitutional warrant by virtue of tradition. As the Court today describes, a long history, stretching back to the first session of Congress (when chaplains began to give prayers in both Chambers), “ha[s] shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.’” Relying on that “unbroken” national tradition, Marsh upheld (I think correctly) the Nebraska Legislature’s practice of opening each day with a chaplain’s prayer as “a tolerable acknowledgment of beliefs widely held among the people of this country.”

2. Five Justices (Justice Kennedy, Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) take the view that prayers before legislative bodies — including city councils as well as legislatures — are permissible even when they refer to theological concepts specific to particular religious traditions (such as Jesus Christ, or the resurrection).

The majority implies that the prayers might be impermissible if they “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” or if the prayer giver is chosen in a religiously discriminatory way. (In this case, the prayer givers rotated among local religious denominations, and the city apparently did not intentionally limit itself to some religions.) But there is no requirement that each prayer be “nonsectarian” or ecumenical; and there’s no requirement that the prayer givers rotate this way, and indeed many legislatures, including Congress and the Nebraska Legislature in Marsh, hire chaplains for extended lengths of time.

3. The dissenters (Justices Kagan, Breyer, Ginsburg, and Sotomayor) take the view that, at least (A) when a government meeting isn’t just concerned with lawmaking, but is “also [an] occasion[] for ordinary citizens to engage with and petition their government, often on highly individualized matters” (common in city councils, though less so in state legislatures), and (B) the prayers are framed as being said to the public and not just to the legislature, then one of two things must be done:

  1. prayer givers must be instructed by the government to frame their prayers in “nonsectarian terms, common to diverse religious groups, or
  2. the government must actively “invite[] clergy of many faiths” to give prayers — though then each individual prayer would not need to be nonsectarian.

So if the Town of Greece had deliberately invited more non-Christian prayer givers (which apparently it hadn’t done until complaints started coming in), then even the sectarian prayers that were actually delivered would have been acceptable even to the dissent. “When one month a clergy member refers to Jesus, and the next to Allah or Jehovah — as the majority hopefully though counterfactually suggests happened here — the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.”

Note that the dissent does not indicate how often non-Christian prayer givers would need to lead the prayer (under the invite-clergy-of-many-faiths option), though it appears that proportional representation relative to the population might not suffice. If 95% of the religious worshippers in an area are Christian (probably pretty likely in many places, and perhaps in the Town of Greece itself), then proportional representation would mean that a non-Christian religious speaker would offer prayers only once every two years; it’s not clear whether that would suffice, given the majority’s “one month … and the next” analysis.

4. A big part of the dispute between the majority and the dissent turned on how to analyze the Town’s specific means of choosing prayer givers. As the majority describes it,

The town followed an informal 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. 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. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too.

The town’s practices omitted — apparently inadvertently — a local Buddhist temple which wasn’t in the directory, and some nearby synagogues, which apparently had congregants from the town but were outside the town’s boundaries. The majority stressed the lack of discriminatory purpose behind the town’s practice, coupled with the town’s willingness to include some non-Christian prayer givers after some complaints had come in. The dissent suggested focused on the fact that the practice, whether it involved “[h]onest oversight or not,” yielded a monolithically Christian array of prayer givers: “Every month for more than a decade, the Board aligned itself, through its prayer practices, with a single religion.”

5. More broadly, the majority didn’t use this case as an opportunity to overturn the “endorsement” test that still has bare support in the precedents. This decision was narrowly focused on legislative prayer, a practice that has an unusually long and specific American tradition dating back to the Framing and even to the Continental Congress in 1774; it does not speak to how courts should consider other references to religion, such as on monuments, on city seals, in holiday displays, and the like. And while Justice Thomas repeated his view that the Establishment Clause should not be seen as incorporated by the Fourteenth Amendment against the states, no other Justice joined that view.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Jonathan H. Adler · May 5