Town of Greece v. Galloway

572 U.S. _

Case Year: 2014

Case Ruling: 5-4, Reversed

Opinion Justice: Kennedy

FACTS

The town of Greece is located in the northern outskirts of Rochester, New York, and has a population of 94,000. Beginning in 1999, the town board began the practice of having a member of the local clergy recite a prayer at the beginning of its monthly meetings. The purpose of the prayer, according to town officials, was to give the proceedings a solemn and deliberative tone and to invoke divine guidance.

To select the prayer givers, a town employee contacted all religious congregations in Greece and requested volunteers. Any minister or layperson of any religious persuasion, including atheism, was eligible to participate without pay. The guest clergy were able to craft their own prayers. The town did not provide guidance as to content or tone and did not review the prayers in advance. The town did not exclude or deny participation by any volunteering clergy. However, because of the composition of the town’s congregations, the recited prayers were all from a Christian perspective, often invoking the name of Jesus. The town made no effort to recruit clergy from outside of Greece to promote religious diversity.

Susan Galloway, who is Jewish, and Linda Stephens, an atheist, attended town board meetings to voice their opinions about local issues. They objected to the prayers’ pervasive Christian themes, claiming the practice violated their religious and philosophical views. Galloway described the prayers as “offensive,” “intolerable,” and an affront to a “diverse community.” After receiving the complaint, the board invited a Jewish layman and a member of the Baha’i faith to give prayers and accepted the offer of a Wiccan priestess to do so.

Galloway and Stevens continued to object to the sectarian prayers and eventually filed suit, claiming that the sectarian prayers violated the Establishment Clause. They requested that in the future only inclusive and ecumenical prayers that referred to a generic god be permitted. The federal district court upheld the board’s prayer practice, but the court of appeals reversed. Appeal to the Supreme Court allowed the justices to reconsider the precedent of Marsh v. Chambers (1983), upholding prayers at the opening of state legislature sessions.

 

JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT, EXCEPT AS TO [THE DISCUSSION OF COERCION IN THE LAST SECTION OF THIS EXCERPT WITH WHICH JUSTICES SCALIA AND THOMAS DO NOT AGREE]:

The Court must decide whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court’s opinion in Marsh v. Chambers (1983), that no violation of the Constitution has been shown.

In Marsh v. Chambers, the Court found no First Amendment violation in the Nebraska Legislature’s practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. The Court has considered this symbolic expression to be a “tolerable acknowledgment of beliefs widely held” rather than a first, treacherous step towards establishment of a state church.

Marsh is sometimes described as “carving out an exception” to the Court’s Establishment Clause jurisprudence because it sustained legislative prayer without subjecting the practice to “any of the formal ‘tests’ that have traditionally structured” this inquiry. The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. 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. When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent. “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.” Marsh.

Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.” 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. In the 1850s, 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. 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. A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.

The Court’s inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the State Legislatures. Respondents assert that the town’s prayer exercise falls outside that tradition and transgresses the Establishment Clause for two independent but mutually reinforcing reasons. First, they argue that Marsh did not approve prayers containing sectarian language or themes, such as the prayers offered in Greece that referred to the “death, resurrection, and ascension of the Savior Jesus Christ,” and the “saving sacrifice of Jesus Christ on the cross.” Second, they argue that the setting and conduct of the town board meetings create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board. The sectarian content of the prayers compounds the subtle coercive pressures, they argue, because the nonbeliever who might tolerate ecumenical prayer is forced to do the same for prayer that might be inimical to his or her beliefs.

Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that “use overtly Christian terms” or “invoke specifics of Christian theology.” A prayer is fitting for the public sphere, in their view, only if it contains the ‘“most general, nonsectarian reference to God.’” . . .

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

. . . Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. The opinion noted that Nebraska’s chaplain, the Rev. Robert E. Palmer, modulated the “explicitly Christian” nature of his prayer and “removed all references to Christ” after a Jewish lawmaker complained. With this footnote, the Court did no more than observe the practical demands placed on a minister who holds a permanent, appointed position in a legislature and chooses to write his or her prayers to appeal to more members, or at least to give less offense to those who object.Marsh did not suggest that Nebraska’s prayer practice would have failed had the chaplain not acceded to the legislator’s request. 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. 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.”

To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior. Engel v. Vitale(1962). It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. 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. . . .

In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from its place at the opening of legislative sessions, where it is 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. 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 of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court. . . .

Finally, the Court disagrees with the view taken by the Court of Appeals that the town of Greece contravened the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer. 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. 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. 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. 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,” a form of government entanglement with religion that is far more troublesome than the current approach.

Respondents further seek to distinguish the town’s prayer practice from the tradition upheld in Marsh on the ground that it coerces participation by nonadherents. They and some amici contend that prayer conducted in the intimate setting of a town board meeting differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation. . . . Respondents argue that the public may feel subtle pressure to participate in prayers that violate their beliefs in order to please the board members from whom they are about to seek a favorable ruling. In their view the fact that board members in small towns know many of their constituents by name only increases the pressure to conform.

It is an elemental First Amendment principle that government may not coerce its citizens “to support or participate in any religion or its exercise.” On the record in this case the Court is not persuaded that 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. 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.

The prayer opportunity in this case must be evaluated against the backdrop of historical practice. . . . 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. 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.

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. . . . To be sure, many members of the public find these prayers meaningful and wish to join them. 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. . . .

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. No such thing occurred in the town of Greece. . . . 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, not coercive. . . . Nothing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined. In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court.

In their declarations in the trial court, 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 violation is 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. If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. But the showing has not been made here, where the prayers neither chastised dissenters nor attempted lengthy disquisition on religious dogma. Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood. 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.

This case can be distinguished from the conclusions and holding of Lee v. Weisman [1992]. There the Court found that, in the context of a graduation where school authorities maintained close supervision over the conduct of the students and the substance of the ceremony, a religious invocation was coercive as to an objecting student. 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. . . . 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. Neither choice represents an unconstitutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure.” Marsh. . . .

Ceremonial 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 to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.

. . . The judgment of the U.S. Court of Appeals for the Second Circuit is reversed.

It is so ordered.

JUSTICE THOMAS, WITH WHOM JUSTICE SCALIA JOINS CONCURRING IN PART AND CONCURRING IN THE JUDGMENT:

Except for [its treatment of coercion], I join the opinion of the Court, which faithfully applies Marsh v. Chambers (1983). I write separately to . . . state my understanding of the proper “coercion” analysis. . . .

. . . [T]he municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding. “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church.

. . . . [B]oth state and local forms of establishment involved “actual legal coercion.” They exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. . . .

Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts—not the “subtle coercive pressures” allegedly felt by respondents in this case. The majority properly concludes that “[o]ffense . . . does not equate to coercion,” since “[a]dults often encounter speech they find disagreeable, and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum.” I would simply add . . . that “[p]eer pressure, unpleasant as it may be, is not coercion” either.

JUSTICE ALITO, WITH WHOM JUSTICE SCALIA JOINS, CONCURRING:

The principal dissent claims to accept the Court’s decision in Marsh v. Chambers, which upheld the constitutionality of the Nebraska Legislature’s practice of prayer at the beginning of legislative sessions, but the principal dissent’s acceptance ofMarsh appears to be predicated on the view that the prayer at issue in that case was little more than a formality to which the legislators paid scant attention. The principal dissent describes this scene: A session of the state legislature begins with or without most members present; a strictly nonsectarian prayer is recited while some legislators remain seated; and few members of the public are exposed to the experience. This sort of perfunctory and hidden-away prayer, the principal dissent implies, is all that Marsh and the First Amendment can tolerate.

It is questionable whether the principal dissent accurately describes the Nebraska practice at issue in Marsh, but what is important is not so much what happened in Nebraska in the years prior to Marsh, but what happened before congressional sessions during the period leading up to the adoption of the First Amendment. By that time, prayer before legislative sessions already had an impressive pedigree . . . .

This first congressional prayer was emphatically Christian, and it was neither an empty formality nor strictly nondenominational. But one of its purposes, and presumably one of its effects, was not to divide, but to unite.

. . . [T]he practice of beginning congressional sessions with a prayer was continued after the Revolution ended and the new Constitution was adopted. One of the first actions taken by the new Congress when it convened in 1789 was to appoint chaplains for both Houses. The first Senate chaplain, an Episcopalian, was appointed on April 25, 1789, and the first House chaplain, a Presbyterian, was appointed on May 1. Three days later, Madison announced that he planned to introduce proposed constitutional amendments to protect individual rights; on June 8, 1789, those amendments were introduced; and on September 26, 1789, the amendments were approved to be sent to the States for ratification. In the years since the adoption of the First Amendment, the practice of prayer before sessions of the House and Senate has continued, and opening prayers from a great variety of faith traditions have been offered. This Court has often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights, see, e.g., Harmelin v. Michigan (1991), Carroll v. United States (1925), and this principle has special force when it comes to the interpretation of the Establishment Clause. This Court has always purported to base its Establishment Clause decisions on the original meaning of that provision. Thus, in Marsh, when the Court was called upon to decide whether prayer prior to sessions of a state legislature was consistent with the Establishment Clause, we relied heavily on the history of prayer before sessions of Congress and held that a state legislature may follow a similar practice.

There can be little doubt that the decision in Marsh reflected the original understanding of the First Amendment. It is virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause. And since this practice was well established and undoubtedly well known, it seems equally clear that the state legislatures that ratified the First Amendment had the same understanding. . . .

. . . . All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.

JUSTICE KAGAN, WITH WHOM JUSTICE GINSBURG, JUSTICE BREYER, AND JUSTICE SOTOMAYOR JOIN, DISSENTING:

I respectfully dissent from the Court’s opinion because I think 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 (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. . . .

. . . The town hall here is a kind of hybrid. Greece’s Board indeed has legislative functions, as Congress and state assemblies do—and that means some opening prayers are allowed there. But . . . the Board’s meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters. That feature calls for Board members to exercise special care to ensure that the prayers offered are inclusive—that they respect each and every member of the community as an equal citizen. But the Board, and the clergy members it selected, made no such effort. Instead, the prayers given in Greece, addressed directly to the Town’s citizenry, were more sectarian, and less inclusive, than anything this Court sustained in Marsh. For those reasons, the prayer in Greece departs from the legislative tradition that the majority takes as its benchmark. . . .

. . . Marsh upheld prayer addressed to legislators alone, in a proceeding in which citizens had no role—and even then, only when it did not “proselytize or advance” any single religion. It was that legislative prayer practice (not every prayer in a body exercising any legislative function) that the Court found constitutional given its “unambiguous and unbroken history.” But that approved practice . . . is not Greece’s. None of the history Marsh cited—and none the majority details today—supports calling on citizens to pray, in a manner consonant with only a single religion’s beliefs, at a participatory public proceeding, having both legislative and adjudicative components. . . .

Everything about [the Town’s practices], I think, infringes the First Amendment. That the Town Board selects, month after month and year after year, prayergivers who will reliably speak in the voice of Christianity, and so places itself behind a single creed. That in offering those sectarian prayers, the Board’s chosen clergy members repeatedly call on individuals, prior to participating in local governance, to join in a form of worship that may be at odds with their own beliefs. That the clergy thus put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders. That the practice thus divides the citizenry, creating one class that shares the Board’s own evident religious beliefs and another (far smaller) class that does not. And that the practice also alters a dissenting citizen’s relationship with her government, making her religious difference salient when she seeks only to engage her elected representatives as would any other citizen.

None of this means that Greece’s town hall must be religion- or prayer-free. . . . If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. Or if the Board preferred, it might have invited clergy of many faiths to serve as chaplains, as the majority notes that Congress does. When one month a clergy member refers to Jesus, and the next to Allah or Jehovah . . . 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. So Greece had multiple ways of incorporating prayer into its town meetings—reflecting all the ways that prayer (as most of us know from daily life) can forge common bonds, rather than divide.

But Greece could not do what it did: infuse a participatory government body with one (and only one) faith. . . .

And the month in, month out sectarianism the Board chose for its meetings belies the majority’s refrain that the prayers in Greece were “ceremonial” in nature. Ceremonial references to the divine surely abound: The majority is right that “the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’” each fits the bill. But prayers evoking “the saving sacrifice of Jesus Christ on the cross,” “the plan of redemption that is fulfilled in Jesus Christ,” “the life and death, resurrection and ascension of the Savior Jesus Christ,” the workings of the Holy Spirit, the events of Pentecost, and the belief that God “has raised up the Lord Jesus” and “will raise us, in our turn, and put us by His side”? No. These are statements of profound belief and deep meaning, subscribed to by many, denied by some. . . . If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different—and, I think, poorer—place to live.

The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” . . .

. . . When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision.

JUSTICE BREYER, DISSENTING:

As both the Court and Justice Kagan point out, we are a Nation of many religions. And the Constitution’s Religion Clauses seek to “protec[t] the Nation’s social fabric from religious conflict.” The question in this case is whether the prayer practice of the town of Greece, by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the “political division along religious lines” that “was one of the principal evils against which the First Amendment was intended to protect.” Lemon v. Kurtzman (1971).

In seeking an answer to that fact-sensitive question, “I see no test-related substitute for the exercise of legal judgment.” Having applied my legal judgment to the relevant facts, I conclude, like Justice Kagan, that the town of Greece failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although it is a community of several faiths, its prayer givers were almost exclusively persons of a single faith. Under these circumstances, I would affirm the judgment of the Court of Appeals that Greece’s prayer practice violated the Establishment Clause.