• Local governments in Illinois and around the country should become knowledgeable about the U.S. Supreme Court's ruling this week in Town of Greece v. Galloway.
  • In its 5-4 ruling, the Court declared that local governmental entities may start their meetings with invocations and prayers without violating the First Amendment's Establishment Clause.

This week, a sharply divided U.S. Supreme Court issued its ruling in Town of Greece v. Galloway, a decision that overruled the lower court decision and determined that the prayers preceding Town Board meetings in upstate New York's Town of Greece did not violate the Establishment Clause of the First Amendment. Given the case's interest to local governments in Illinois and nationwide, this alert summarizes the Court's majority ruling and the concurring and dissenting opinions.

The Establishment Clause

The application of the Establishment Clause is central to this case. As the first 10 words of the First Amendment to the U.S. Constitution, the Establishment Clause states that: "Congress shall make no law respecting an establishment of religion . . .." The Supreme Court in 1947 recognized the Establishment Clause as applicable to the states under the Fourteenth Amendment.

Implications for Local Governments

The majority's ruling establishes that a local government body may begin its governing board's meetings with an invocation or prayer. The prayer may have a distinct religious orientation and need not be secularized. The prayer may not be delivered in a manner or under circumstances that compel the audience to participate. Nor may the governing body act differently toward persons who choose not to participate in the prayer from those who do participate.

To be certain of avoiding a First Amendment violation, the best practice for a local governmental body wishing to maintain or create a tradition of prayer before a meeting may be to invite clergy of various faiths to deliver the prayer, as a matter of policy. To avoid any implication that joining in the prayer is mandatory, governmental body should: (1) orient the prayer toward the governing body rather than toward the audience, (2) instruct prayer-givers not to ask the audience to stand, bow heads, recite or follow along, or otherwise participate in the prayer, and (3) remind prayer-givers that the audience likely includes people of many faiths and varying beliefs.

The Facts of the Case

The Supreme Court's decision is fact-sensitive, so it is important to review the basic circumstances under which the case arose. Greece is a town of about 94,000 residents located in upstate New York. Its Town Board meets monthly, and since 1999 each Town Board meeting has begun with a prayer given by an invited guest clergyman.

Greece is predominately Christian, and a great majority of the places of worship are Christian. The town used a list of religious organizations published in the Chamber of Commerce's "Community Guide" to find clergy willing to give the prayer. This process resulted in the prayers almost always having a Christian orientation. Greece apparently did not purposely exclude any religions, but it did little or nothing to promote religious diversity in the prayer-givers.

Two residents who attended the Town Board meetings objected to the prayers as violating their religious beliefs or philosophical views. When Greece did not accede to the residents' requests that all prayers be inclusive and ecumenical, referring only to a generic God, they filed the lawsuit on which the Supreme Court has just ruled.

The Majority Ruling

In his majority opinion, Justice Kennedy wrote that "legislative prayer," while religious in nature, has always been understood as compatible with the Establishment Clause. Since the First Congress, federal legislators have opened their meetings with prayers from appointed chaplains. And "historical practices and understandings" have clearly established that legislative prayer was not considered an affront to the Establishment Clause. Instead, he wrote, "the Framers considered legislative prayer a benign acknowledgment of religion's role in society."

The issue of legislative prayer was comprehensively reviewed in the Supreme Court's ruling in Marsh v. Chambers, 463 U.S. 783 (1983). Marsh involved the Nebraska Legislature's practice of openings its sessions with a prayer delivered by a chaplain paid from state funds. The Marsh Court wrote that "the opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country." 463 U.S. at 786. The Court also wrote that delegates to the federal constitutional convention in 1789 did not consider opening prayers as a proselytizing activity or as symbolically placing the government's official seal of approval on one religious view. 463 U.S. at 792.

Because history so solidly establishes that legislative prayers are compatible with the Establishment Clause, the Marsh Court wrote, legislative prayer is not subject to the formal "tests" that traditionally have applied to Establishment Clause issues, such as excessive entanglement, secular purpose, and primary effect. The Town of Greece's practice of prayer before its Board meetings, Justice Kennedy wrote, also are in the nature of the federal tradition.

Justice Alito's Concurrence

Justice Alito, joined by Justice Scalia, wrote a separate opinion to respond to the primary dissent written by Justice Kagan. His purpose was to show that history and the facts support the Court majority's position. He wrote that there is no historical support for the proposition that only a generic prayer is allowed by the Establishment Clause.

Justice Alito also argued that Justice Kagan's reasoning that the Constitutional conflict could have been avoided if Greece had simply invited clergy of many faiths to pray means that the dissenters' quarrel boils down to the notion that the Greece clerical staff did a bad job in compiling a list of potential guest chaplains and in that way committed a violation of the Constitution.

Justice Alito also expressed disagreement with Justice Kagan's conclusion that legislative prayer in Congress or a state legislature is different from prayer at a town meeting where residents attend and interact with the elected officials.

Justice Thomas's Concurrence

Justice Thomas, joined by Justice Scalia, wrote an opinion concurring in part with Justice Kennedy's majority opinion and concurring in the judgment of the Court. Justice Thomas wrote separately to make his argument, as he has written before, that the Establishment Clause is best understood as a federalism provision and thus should not have been made applicable to the states under the Fourteenth Amendment.

Justice Thomas also wrote that even if the Establishment Clause were properly incorporated against the states, Greece's prayers "bear no resemblance to the coercive state establishments that existed at the founding." Justice Thomas believes the Establishment Clause is not violated whenever a reasonable person feels subtle pressure, perceives governmental endorsement of a particular religion, or endures peer pressure. Instead, he wrote, it is state-established religion or "actual legal coercion" that implicates the Establishment Clause.

Justice Kagan's Dissent

In Justice Kagan's dissenting opinion, which was joined by Justices Ginsburg, Breyer, and Sotomayor, she wrote that the although pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality, the Town of Greece went astray when it authorized and oversaw prayers associated with a single religion to the exclusion of all other religions. She argued that religious favoritism is contrary to First Amendment principles.

Justice Kagan agreed that legislative prayer has a "distinctive constitutional warrant by virtue of tradition." But, she wrote, the prayer practices in Greece were more sectarian and less inclusive than the Court sustained in Marsh and thus differed from the tradition of legislative prayer. Further, the circumstances of a meeting in a Town Hall differ greatly from meetings of Congress or a state legislature. People at a Town Board meeting know each other. Audience members come to the meetings to make requests and seek approvals from the Board. When a prayer is spoken audience members who do not want to participate must choose whether to leave the room, stay without participating, stay and pretend to participate, or actually participate against their will or desire. Under all of these circumstances, the Town's prayer practices may divide the citizenry, creating one class that shares the Town Board's religious beliefs and another class that does not.

Justice Breyer's Dissent

Justice Breyer's separate dissent was written principally to emphasize that Greece's failure to make reasonable efforts to provide prayers other than from Christian prayer-givers promoted divisions along religious lines, whether purposely or unintentionally. This, he concluded, violated the Establishment Clause.