Supreme Court Upholds Town Council’s Legislative Prayer

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: May 7, 2014

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On Monday, the Supreme Court delivered its opinion in the Town of Greece v Galloway and opened up debate across the country about the separation of church and state.  In a divided 5-4 opinion, SCOTUS upheld the right of the town of Greece to open public board meetings with a prayer by a local clergy meeting – creating strong dissent amongst secular groups who believe that Christian based prayer does not belong in a political forum.

Separation of Church and State

U.S. Supreme Court BuildingCentral to the public debate is the Constitutional mandate of a separation between church and state as articulated by the Establishment Clause of the First Amendment and interpreted by years of court opinions.  The Constitution prevents any level of government from promoting religion, or using legal processes to establish the legitimacy of one faith over another. 

At issue in Greece is the town council’s regular practice of calling every board meeting to order with a recitation of a predominately Christian prayer.  Citizens who attended town meetings took umbrage with the practice, and filed a First Amendment claim against the town council arguing that its prayer violated the Establishment Clause by too closely embracing religion into the political fold.  The Federal Second Circuit Court agreed that the practice served as an endorsement of Christianity, however, the Supreme Court disagreed and allowed the town to continue its traditional prayer.

Majority Distinguishes Town Council Prayer

Key to the majority’s decision is the rule from 1983’s Marsh v Chambers which upheld the right for the Nebraska Legislature to open its sessions with a prayer because doing so was an established tradition.  Finding legislative prayers to be closer to ceremony than representative of a close knit bond between religion and political process, the Marsh case determined that praying before state congressional sessions did not violate the Establishment Clause.

Applying the Marsh precedent, Justice Kennedy wrote for the majority to uphold the Greece town council’s pre-session prayer.  Saying that any legislative body – including a town council – can open a prayer providing that it is not religiously discriminatory, the majority opinion distinguished Greece’s prayer as a tradition that is within Constitutional grounds.  The decision was narrowly applied to traditional prayer before legislative session, and declined to expand the Marsh case to other religious practices.  Although the distinction between religious practice and established tradition may seem thin to dissenters, the Court is not without legal or historical basis in determining that a short prayer prior to a legislative session does not violate the Establishment’s Clause by blending church and state.

Justice Kagan Leads Dissent

Justice Kagan, writing for Justices Ginsberg, Breyer, and Sotomayor, provided a spirited dissent against the majority decision by distinguishing the Marsh decision from Greece’s pre-council prayer.  Taking no issue with prayer prior to a legislative session, the dissent instead argued that a town council is more of public meeting and “an occasion for ordinary citizens to engage with and petition their government,” making it a more personal and individualized affair which is not appropriate for sectarian prayer.  Because of the personal connection citizens have with town council meetings, the dissent argued that prayers are said directly to the public and therefore one of two things must be done:

  1. The prayer must be in “nonsectarian terms, common to diverse religious groups,” or;
  2. The government must “invite clergy of many faiths” to give the prayers

Greece, which relied primarily on Christian ministers and religious figures at the exclusion of other religious groups, did not satisfy either of the dissent’s proposed requirements.  According to Justice Kagan, the town’s practices omitted non-Christian prayers and risked alienating townspeople who may not share the same beliefs as the town council.  Focusing on the personal connection between a town council and the citizens, the dissent found that sectarian and exclusionary prayer was not protected as tradition under Marsh, and too closely wrapped religion into political process.

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