OCBA UPDATE: Let us pray...

By James G. Derian

This year the U.S. Supreme Court will decide the constitutionality of another legislative prayer case, which could either sharply curtail or significantly expand the sectarian content of public prayers in town council meetings across the United States. In Town of Greece v. Galloway,1 the Court will decide if the Second Circuit Court of Appeals erred in ruling that the little Town of Greece, New York, violated the Establishment Clause by opening its town council meetings with legislative prayers when approximately 85 percent of the time they contained explicit references to uniquely Christian doctrines not shared with other faiths, much less with secularists. The Second Circuit found that when viewed in its totality by an ordinary, reasonable observer, this practice conveyed the view that the town "favored or disfavored certain religious beliefs." Accordingly, the Second Circuit held that the practice constituted "an endorsement of a particular religious viewpoint" and, hence, a violation of the Establishment Clause of the First Amendment.

The two residents of the Town of Greece who filed this suit contend that the case is not about the historic right of federal and state legislators to solemnize the opening of their proceedings with an invocation. Rather, it's about the right of citizens to participate in their local government without being pressured to actively join in sectarian prayers that conflict with their religious beliefs. Specifically, they complain that the Town of Greece did not give its guest chaplains any guidelines to discourage sectarian, proselytizing or disparaging prayers. The two plaintiff citizens also complain that the town's stated policy of accepting volunteer chaplains of any faith was undercut by the town's failure to ever announce such a policy and by the town's reliance on "a cadre of recurrent volunteers." This process "virtually assured a Christian viewpoint." The rare instances over the course of a decade in which individuals from other faiths delivered the invocation "[could not] overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town's prayer practice associated [it] with the Christian religion."

In summary, the plaintiff citizens maintain that the town's prayer practice is unconstitutional for two basic reasons: (1) the practice puts "coercive pressure" on citizens to actively participate in the prayers, which are a form of religious worship; and (2) the prayers are mostly sectarian and divisive, rather than inclusive in content.

The Town of Greece defends its practice of legislative prayer by relying heavily on the 1983 U.S. Supreme Court case of Marsh v. Chambers.2 Marsh upheld the constitutionality of the Nebraska state Legislature's use of the same Presbyterian minister as its chaplain for 16 years. The Marsh court found that there was no "impermissible motive" in the selection process, and that this minister was always reappointed to his position "because of his performance and personal qualities," not his Christian religion.

The Town of Greece contends that the test under Marsh for evaluating the constitutionality of legislative prayer is not whether the prayers are sectarian or nonsectarian in content, but whether, based on the totality of the circumstances, the prayers are "being exploited to advance or disparage a belief, or to associate the government with a particular religion." The Town of Greece further points out that the U.S. District Court found that the prayers offered by the town's guest chaplains did not "proselytize" in favor of one, or disparage any other creed or belief. The U. S. District Court also found that the town's practice of permitting "a variety of clergy to give invocations" lessened the likelihood that the town could be viewed as "advancing" a particular religion and, therefore, lessened the concern over the sectarian nature of particular prayers.

Essentially, the Town of Greece denies that the Marsh holding only permits nonsectarian legislative prayer. It denies that faith-specific references in prayers "advance" one religion over another. Rather, it contends that the Marsh court's concept of "advancing" a belief must require a showing that the public prayers sponsored by the town resulted in activities that are comparable to attempts to proselytize, or to convert people from one religion to another.

The Town of Greece maintains the citizens who attend its meetings are "passive," not "active," participants in legislative prayer, despite the fact that they are often asked to stand, bow their heads and join in a sectarian prayer. The town argues that while the psychological coercion of such prayer has been recognized by the Supreme Court in public school settings with impressionable minors, it is not the case with adults who may reasonably be assumed to have fully formed their own religious beliefs or nonbeliefs. Moreover, the town contends, an adult individual is not coerced by a civic acknowledgment of religion so long as that individual is not "required" to participate in it or assent to the views expressed. Here, the townspeople attending the meeting were free to remain seated and silent, or leave the room.

Indeed, the town continues, the expectation that citizens should be respectful of others' religious beliefs is consistent with broader First Amendment jurisprudence, which presupposes that citizens will be exposed to a variety of viewpoints that they may disagree with or even find offensive. Because the town never compels anyone to pray or conditions governmental benefits on participation, it maintains that the fact some citizens might be offended by sectarian prayers is insufficient to constitute an Establishment Clause violation.

Both parties in the Town of Greece case make compelling arguments in their appeal briefs. But a must-read for those interested in this debate is the amicus brief filed by a group of nationally recognized law professors who teach and write in the field of church-and-state law. This amicus brief was principally authored by Prof. Christopher C. Lund of Wayne State University Law School. These law professors reportedly come from a variety of political perspectives. Some are religious believers; others are not. But they all agree that Marsh v. Chambers should either be overruled or limited to its facts.

The principal point made by these amici curiae is that the 30 years of history since the Supreme Court's ruling in Marsh has brought into focus the type of constitutional problems that can arise when government sponsors prayer.3 By far, the biggest issue spawned by Marsh has been over the content of legislative prayers, which is the central issue in the Town of Greece case. Everyone in this debate agrees that government must stay neutral in matters of religion, but disagreement sets in over whether neutrality can truly be maintained when the government promotes prayer. Prof. Lund and his fellow amici point out that a unifying assumption in all of the legislative prayer cases, including Marsh, is that these prayers are to reflect the diverse religious heritage of our country in a way that is designed to include, not exclude, members of the community.

The problems with government regulation of appropriate prayer content are innumerable. The U.S. Supreme Court has ruled that, in the public school context, prayers at school events should simply not be allowed because courts are not qualified to edit religious language and make judgments regarding what are appropriate religious messages. In Santa Fe Indep. Sch. Dist. v. Doe,4 it was Christian prayer before football games by "elected" students that the Court found had the effect of coercing those present to participate in an act of worship. In Lee v. Weisman,5 it was a graduation ceremony with a Jewish rabbi giving a sectarian invocation where attendees felt pressured to actively participate in the prayer.

Another persistent problem with legislative prayer, according to these friends of the court, has been disputes over the choice of prayer-givers. Marsh says the selection process must be strictly religion-neutral, but is that realistically possible? To this day, Congress has never had a Jewish or female chaplain, much less a Hindu, Muslim, Wiccan or even a Mormon chaplain. Why? Politically unpopular choices have historically led to religiously driven political backlashes.6 When government decides who prays, it's essentially making a statement about which religions are true - or at least close enough to the truth to merit inclusion. But disestablishment requires that government stay out of inherently religious debates precisely to avoid such entanglements.7

The bottom line, according to Prof. Lund and his amici, is that legislative prayer requires government to make an extensive set of religious choices. Each choice marginalizes the religious segment that disagrees with it; each choice invites a struggle for future control of it; and each choice furthers religious division along political lines. Accordingly, these friends of the court ask that Marsh be either overruled or limited to its current boundaries - the federal and state legislative chaplaincies.

But, I'd like to know what you think. Your views matter to me. Email me at james.derian@delphi.com.



1Town of Greece v. Susan Galloway and Linda Stephens, No. 12-696 (petition for certiorari filed Dec. 6, 2012 and granted May 20, 2013).

2463 U.S. 783 (1983).

3See generally Christopher C. Lund, "Legislative Prayer and the Secret Costs of Religious Endorsements," 94 MINN. L. REV. 972 (2010).

4530 U.S. 290 (2000)

5505 U.S. 577 (1992)

6See generally Christopher C. Lund, "The Congressional Chaplaincies," 17 WM. & MARY BILL RTS. J. 1171 (2009).

7Those advocating government-sponsored prayer and other forms of religious expression in municipal spaces might be dismayed to learn what a religious organization called the Satanic Temple is up to. In January 2014, the Satanic Temple formally submitted its application and architectural drawings for 7-foot tall statue of Satan at the Oklahoma State Capitol, where a Ten Commandments monument was erected in 2012. The Satanic Temple maintains that the Judeo-Christian Ten Commandments monument opened the door for its statue of Satan, which is a symbol of their occult religion. The artist's rendering depicts Satan as a goat-headed figure with horns, wings and a long beard, sitting on a pentagram-adorned throne with smiling children next to him.


James G. Derian, corporate counsel for Delphi Automotive Systems LLC, is the 81st president of the Oakland County Bar Association.

Published: Thu, Feb 27, 2014