Cullen D. Seltzer, Esquire, litigator and colleague here at Sands Anderson PC, recently shared his report about a key legislative prayer case going to be decided by the United States Supreme Court.  Given the number of legislative prayers that we local government attorneys witness and are asked to opine upon, it should be watched carefully. Here is what Cullen wrote:

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The US Supreme Court granted a writ of certiorari on May 20, 2013 in a legislative prayer case from U.S. Court of Appeals for the Second Circuit.  In doing so, the High Court has set the stage to revisit the question of legislative prayer practices which the Court last considered thirty years ago in Marsh v. Chambers, 463 U.S. 783 (1983).

The Second Circuit case now being considered on appeal to the Supreme Court, Galloway et al v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), decided almost exactly a year ago, held that the Town of Greece in New York had a Constitutionally impermissible practice of beginning its Town Board meetings with religious prayers.  Citing Marsh and reasoning that “legislative prayers may not be ‘exploited to proselytize or advance any one, or to disparage any other, faith or belief,’” the Second Circuit examined closely the Town of Greece’s practice of religious invocations before beginning its Town Board meetings.  The Court found, in the totality of circumstances, several circumstances that rendered the Town of Greece’s legislative prayer unconstitutional:

1. The Town’s process for selecting prayer-givers “virtually ensured a Christian viewpoint.”  Nearly all of the invocations were given by Christian clergy.
2. Even though the Town claimed it would have accepted invocations from any clergy who had asked to participate, that the Town did not solicit other clergy participation was tantamount to an endorsement of Christian clergy.
3. Many of the prayers contained “uniquely Christian references and … prayers devoid of such references almost never employed references unique to some other faith.”
4. The Town never explained to attendees of Board meetings that “it intended the prayers to solemnize Board meetings, rather than to affiliate the town with any particular creed.”

The Second Circuit’s holding in Town of Greece stands in marked contrast to the Fourth Circuit’s holding in Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4^th Cir. 2005).  In Simpson, the U.S. Court of Appeals for the Fourth Circuit upheld Chesterfield County’s refusal to permit a Wiccan Priestess to participate as prayer-giver in advance of Chesterfield County Board of Supervisors meetings.  Chesterfield County permitted only monotheistic congregations to add their religious leaders to the list of permissible prayer givers.

The Fourth Circuit, like the Second, looked to the U.S. Supreme Court’s guidance in Marsh, but took away very different instruction:

1. It makes no difference how legislative bodies select prayer-givers, even if some groups are excluded, so long as the selection process does not stem from an “‘impermissible motive.’”
2. A legislative body’s long history in selecting ministers to deliver legislative prayer suggests the practice is Constitutional.
3. Because Chesterfield County did not select specific prayer-givers, but merely invited “religious leaders” from approved congregations to deliver prayers, the County did not exercise control over either the choice of prayer-giver or the content of the prayer.
4. Instances of Jewish and Muslim prayer-givers, even though the very large majority of prayers were made by Christian congregation leaders, suggested the County did not intend to endorse a particular religion.
5. That Chesterfield instructed religious leaders not to invoke the name of Jesus Christ and Board members testified that the invocation prayer at their meetings was for Board members themselves, and not for the benefit of those in attendance at Board meetings, suggested the Board had no improper purpose in its legislative prayers.

That the Second Circuit and Fourth Circuit have construed Marsh in such conflicting ways suggests the legal issues require resolution by the Supreme Court.  The case, of course, is fraught with a host of practical, religious, political, and cultural questions.  When considering how to fashion an invocation prayer policy, legislative and governmental bodies should examine closely the instruction from the Supreme Court.

What is clear from both the Town of Greece and Chesterfield County cases, at least in the lower federal appellate courts, is that First Amendment Establishment Clause law in this area is applied very differently than in many other contexts.  The famous three-part test for determining Establishment Clause violations set out in Lemon v. Kurtzman, 403 U.S. 602 (1961)(requiring government action to have a secular purpose, to not have the primary effect of advancing or inhibiting religion, and to not create an excessive entanglement between government and religion), appears to have no place in determining whether a particular legislative  prayer service or practice is Constitutionally permissible.

Government officials would do well to continue to monitor developments in the Town of Greece case.  The case will be briefed over the summer and argument is expected in the Supreme Court sometime this fall.