U.S. Supreme Court

SCOTUS upholds 'chaplain of the month' prayers before town meetings

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The U.S. Supreme Court has ruled that mostly Christian prayers, delivered by a “chaplain of the month” before town meetings, do not violate the establishment clause.

A 5-4 majority upheld the prayers, delivered by volunteer ministers before meetings of the town of Greece in upstate New York. “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,” Justice Anthony M. Kennedy wrote in the majority opinion (PDF).

Kennedy cited Marsh v. Chambers, a 1983 Supreme Court decision finding 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. Marsh noted that opening legislative sessions with prayers was a long-established practice that had become part of the fabric of society.

The town of Greece replaced its moment of silence before town meetings with prayers in 1999, according to Kennedy’s opinion. At first the town found volunteer ministers through a local directory of congregations, nearly all of which were Christian. From 1999 to 2007, all of the participating clergy members were Christian, although the town maintained that it would have allowed atheists and lay persons to deliver the invocation. The prayers were not reviewed before the town meetings, and there was no guidance as to content.

The two women who sued in a bid to stop the prayers said the invocations violated their religious or philosophical views. After the women complained, the town allowed a Wiccan priestess to deliver the invocation and invited other non-Christians to deliver prayers.

In effect, the plaintiffs wanted the town to allow prayers that referred only to a “generic God,” without reference to a particular faith or belief, Kennedy said.

But Kennedy said the constitutionality of legislative prayer does not turn on neutrality of content. “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,” he wrote.

“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 or approving prayers in advance nor criticiz­ing their content after the fact.”

Justices Clarence Thomas and Antonin Scalia did not join a section of Kennedy’s opinion discussing whether the prayers were coercive as defined by Marsh.

In his partial concurrence, Thomas argued that the establishment clause restricts only the federal government. Even if the establishment clause did restrict state government, Thomas said, “it is actual legal coercion that counts—not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.” Scalia joined the section of Thomas’ concurrence arguing that the establishment clause barred only “actual legal coercion,” but not the section arguing that it applied only to restrict the federal government.

Justice Elena Kagan wrote a dissenting opinion joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Breyer also wrote a separate dissent.

Kagan said she agreed with Marsh, but the town of Greece did not comport with the decision because its prayers were primarily sectarian and the town did not reach out to non-Christians. Kagan said that a town hall meeting need not “become a religion-free zone,” but in this case, until suit was filed, the town “did nothing to recognize religious diversity.”

“The not-so-implicit message of the majority’s opinion—‘What’s the big deal, anyway?’—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike,” Kagan said. “I would treat more seriously the multiplicity of Americans’ religious commitments, along with the challenge they can pose to the project—the distinctively American project—of creating one from the many, and governing all as united.”

Justice Samuel A. Alito Jr., who joined Kennedy’s opinion in full, wrote a separate concurrence to address Kagan’s arguments. Scalia joined his concurrence.

The case is Town of Greece v. Galloway.

Prior coverage:

ABAJournal.com: “Are prayers before town meetings constitutional? SCOTUS hears arguments”

ABA Journal: “The establishment clause is still a contentious battle among the justices”

ABAJournal.com: “Chemerinsky: Separation of church and state revisited”

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