Scott Forsyth, The Daily Record Newswire
Several folks have asked me what I thought about the Supreme Court upholding the practice of the Greece Town Board opening its meetings with a prayer, Greece v. Galloway, No. 12-696, 2014 WL 1757828 (2014). Let me expand on those thoughts.
First a brief summary of the facts. In 1999, the board switched from opening its monthly meetings from a moment of silence to a prayer delivered by a minister from a religious institution located in the town. In 10 years, all but four of the prayer-givers were Christian. Two-thirds of the prayers contained one or more references to figures or beliefs peculiar to Christianity.
The prayer-givers faced the audience and usually asked it to stand. Afterwards the supervisor thanked “our chaplain of the month.”
The town did not intentionally discriminate against non-Christians in its selection of prayer-givers.
Two residents objected to the practice. When the town refused to change, they sued. The federal district court dismissed the suit, ruling the town’s prayer was not an establishment of religion in violation of the First Amendment. The Second Circuit Court of Appeals reversed. The Supreme Court affirmed the district court.
The question in Galloway was not could a legislative body open a meeting with a prayer. The Supreme Court had answered that question in the affirmative 31 years ago in a case involving the Nebraska state legislature, Marsh v. Chambers, 463 U.S. 783 (1983).
In Marsh, the court looked to history as a guide and traced legislative prayer back to the founding of the country. For example, days after the First Congress approved the First Amendment, it appointed an official chaplain, a post that continues today.
In Galloway, the court reaffirmed the courts must interpret the Establishment Clause “by reference to historical practices and understandings.” If a practice “was accepted by the Framers and has withstood the critical scrutiny of time and political change,” then it is consistent with the clause.
The plaintiffs were not asking the court to overrule Marsh or retreat from the historical view expressed therein. Instead, they argued the Greece prayers fell outside the tradition of prayers approved by Marsh, because 1) they were sectarian in content, and 2) they were coercive in context.
The Supreme Court saw no problem in the occasional reference to a faith-specific creed or figure. Historically legislative prayers contained such references. Also their purpose was ceremonial, not to proselytize but to “lend gravity to public business (and to) remind lawmakers to transcend petty differences in pursuit of a higher purpose.”
The court also did not find the context coercive. The prayers were “directed” at the town board, not the public. A person in attendance should know the tradition and purpose of legislative prayer. If he is uncomfortable with the prayer opportunity, he need not participate. Being offended does not equate to coercion.
On the one hand, the holding of Galloway can be seen as narrow — extending to local legislative prayer the protection of Marsh. On the other hand what is notable about Galloway is what it did not say. Nowhere in its decision did the court analyze the practice under the traditional three-prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971).
I will not describe the Lemon test other than to say many view it as unworkable. Galloway asserts all tests should give way to history and tradition in interpreting the Establishment Clause. This language has led some to predict that the court will soon drop the Lemon test.
History may be a fine guide when a practice, such as legislative prayer, has deep and clear roots. But many times history is muddy, not yielding precise answers or subject to differing interpretations, depending on the historian’s viewpoint and location in time. Consider the many and diverse writings on the causes of the Civil War.
Speaking of which, sometimes what was deeply established years ago is dead wrong today: See slavery and the disenfranchisement of women.
Now dismissal of the lawsuit may be the right result. In saying so I deviate from the party line.
The Establishment Clause aims to protect society from the divisiveness caused by government favoring one religion over another. The town board was mostly benign in its treatment of religion. It could have done a better job of diversifying the prayer-givers, but it was not constitutionally compelled to do so.
The case received much media and scholarly attention, but the issue really did not divide the community. The courts are poorly equipped to manage the content of prayers and the process by which a municipality selects prayer-givers.
Is legislative prayer the best way to open a town board meeting? No, it communicates a message of exclusion to some. But as we now know, it is permitted under the Constitution.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
