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Monday, May 5, 2014

The Decision is in: Town of Greece v. Galloway - Appeal from Second Circuit Striking Down Town Prayer


 "First Prayer of Congress" by H.T. Matteson 1848

Update: May 5, 2014; Today, the Supreme Court, in a 5-4 decision, upheld the Town of Greece's prayer policy.  We've been following this case since it was before the Second Circuit Court of Appeals and it is worth noting that the last case the Supreme Court heard on government prayer was Marsh v. Chambers, in 1983.  Since then, every justice has been replaced.

Writing for the Majority, Justice Anthony M. Kennedy stated that: "[c]eremonial 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."

Justice Kagan, writing for the four justice dissent, gave very narrow reasons for striking the town's policy, noting that the town could have avoided its problems by merely soliciting a more diverse group of prayer givers.  The dissent did agree that the public forum “need not become a religion-free zone.”

Justices Scalia's and Thomas's concurrence argued that only "actual legal coercion" to follow a religious practice should violate the establishment clause.  Thomas, in a separate concurrence, questioned whether the constitution’s Establishment Clause should apply to state and local governments at all.

Read the opinion here.

The original article on this case from last year follows:

American legislatures have been opening with prayer since before the revolution. Generally this practice is accepted as not violating the First Amendment: "Establishment of Religion" clause because invoking the name of God, as has always been done, does not generally cause the government to endorse a particular religion.

However, under current American Jurisprudence, if a law or policy is enacted for the purpose of endorsing a particular religion, then that is sufficient to violate the clause.  Therefore, there can be two identical laws and they may be judged differently based on their purposes.


The establishment test commonly used is called "The Lemon Test" named after the case from which it arises.  Here are the basics:
  1. The government's action must have a secular legislative purpose;
  2. The government's action must not have the primary effect of either advancing or inhibiting religion;
  3. The government's action must not result in an "excessive government entanglement" with religion.
  4. If any of these 3 prongs are violated, the government's action is deemed an unconstitutional establishment of religion.
Under this test, for example, a town can probably put up a Christmas display that includes religious and secular symbols if the intent was not to further religion and if the display does not appear, to more than a de minimis portion of the population, to be an endorsement of Christianity.

The issue in the present case is that the Town of Greece began its prayer practice in 1999 and this may have the intent or at least the effect of giving the impression that the town endorses a particular religion.  According to the Second Circuit's opinion: "we must ask whether the town, through its prayer practice, has established particular religious beliefs as the more acceptable ones, and others as less acceptable."  Galloway v. Town of Greece, 681 F.3d 20, 30 (2d Cir. 2012).

The court concluded: "The town's process for selecting prayer-givers virtually ensured a Christian viewpoint.” Id.  The effect, according to the court, of this policy is to give the impression that the local government supports one religion and that is not constitutionally acceptable.  The court emphasized that:

"We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.”...To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired—one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town's residents or to compel their assent to a particular belief—is fully compatible with the First Amendment."

Galloway, 681 F.3d at 33-34.

It is worth noting that, while it is generally accepted that the Free Exercise Clause applies to the states in the manner addressed above, not everyone agrees that the Establishment Clause should apply to the states.

Historically, one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding. In fact, at least six states had established religions when the Constitution was written.

Some critics also argue that the Due Process Clause of the Fourteenth Amendment only incorporates individual rights. The free exercise of religion was and is a quintessential individual right and had been recognized as such at the state level since before the Constitution was written. The Establishment Clause, unlike the Free Exercise Clause, does not purport to protect individual rights.

The town has petitioned the United States Supreme Court for review.  The issue raised is whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of intentional discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

Resources: Read the Second Circuit Decision


Update: May 20, 2013; This article was originally published in January 2013, approximately one month after the Petition for Certiorari was filed.  Today, the Supreme Court granted certiorari (docket 12-696).  A date for arguments has yet to be set, but the case will heard and decided in the Term starting this October.  The last case the Court heard on government prayer was Marsh v. Chambers, in 1983.  Since then, every justice has been replaced.

Update: August 7, 2013; As of today the Respondent's Brief, Petitioner's Reply Brief, and twenty-three new amicus briefs have been filed.

Update: November 6, 2013; The Supreme Court heard oral arguments today.  You can read more about the positions of both sides here: SCOTUSBLOG - A brief history of religion and government in America.