Today, the Court handed down its ruling in Town of Greece. In a sweeping ruling, the Court upheld the local government’s religious invocations in a 5-4 decision. The ruling pretty dramatically and explicitly broadens the scope of permissible religious invocations for legislative sessions.
Virginia Locality Law Blog highlighted the US Supreme Court case Town of Greece v. Galloway almost a year ago when the Court granted cert in this important Establishment Clause case affecting thousands of state and local government legislative bodies around the country. We noted that the case had the opportunity to rewrite the legal landscape for legislative prayer. That has now come to pass.
Legislative bodies around the country will want to closely examine Town of Greece to determine whether their current practices comport with the newly-articulated Establishment Clause principles. Of course, central to the Court’s ruling is the notion that much of what has been historically done in this field is permissible precisely because the weight of history supports legislative prayer practices. The case resulted in 80 pages worth of opinions. Justice Kennedy wrote for the majority, although portions of his opinion garnered only a plurality of votes.
Justice Kennedy Rationale That Garnered a Majority of the Court
1. The Lemon and Endorsement tests are inapplicable to legislative prayer cases: “Marsh[v. Chambers], stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” (citations omitted).
2. Legislative prayers do not need to be religiously neutral: “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. Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior. It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. See Lee v. Weisman, 505 U. S. 577, 590 (1992) (“The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specificcreeds strikes us as a contradiction that cannot be ac- cepted”); Schempp, 374 U. S., at 306 (Goldberg, J., concurring) (arguing that “untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasivedevotion to the secular”),” (some citations omitted).
Justice Kennedy Rationale that Garnered Only a Plurality of the Court
1. Solemn invocations of prayer are permissible. Proselytization or denigration is not: “If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.”
2. Isolated instances of prayers that disparage other religions do not make the practice of legislative prayer unconstitutional: “Respondents point to other invocations that disparaged those who did not accept the town’s prayer practice. One guest minister characterized objectors as a “minority” who are ‘ignorant of the history of our country,’ while another lamented that other towns did not have ‘God-fearing’ leaders. Although these two remarks strayed from the rationale set out in Marsh, they do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer.”
3. Legislative prayer is permissible in part because it is for the benefit of legislators and not for the benefit of, or to coerce, the public: “The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public.”
Justice Thomas, joined by Justice Scalia, concurred in the Justice Kennedy’s result, but wrote separately to make two points. First, Justice Thomas argued that the Establishment Clause and the First Amendment are properly read as constraints on the Congress, not on the States and the line of cases incorporating the Establishment Clause into the Fourteenth Amendment’s restrictions on the States may be in error. “Incorporation therefore gives rise to a paradoxical result: Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby “prohibit[ing] exactly what the Establishment Clause protected.”
Justice Thomas also reasoned that to the extent the Establishment Clause has been incorporated into the Fourteenth Amendment’s restrictions against the States, it bars only “legal” coercion in favor of an establishment of religion: “Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion thatcounts—not the ‘subtle coercive pressures’ allegedly felt by respondents in this case.”
Justice Kagan, author of the principal dissent, would have ruled the Town of Greece religious invocations unconstitutional on the grounds that the practice in this case was overtly sectarian, exclusive to religious minorities, and because the nature of town council meetings is such that citizens who go to them seeking some governmental action or benefit might feel coerced to participate in the council’s religious observance. While legislative prayer is entitled to some deference, Justice Kagan reasoned, that deference should not extend to the much broader religious practices in this case:
“Relying on that “unbroken” national tradition, Marsh upheld (I think correctly) the Nebraska Legislature’spractice of opening each day with a chaplain’s prayer as “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id., at 792. And so I agree with the majority that the issue here is “whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures.” Ante, at 9. Where I depart from the majority is in my reply to that question. The town hall here is a kind of hybrid. Greece’s Board indeed has legislative functions, as Congress and state assemblies do—and that means some opening prayers are allowed there. But much as in my hypotheticals, the Board’s meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters. That feature calls for Board members to exercise special care to ensure that the prayers offered are inclusive—that they respect each and every member of the community as an equal citizen. But the Board, and the clergy members it selected, made no such effort. Instead, the prayers given in Greece, addressed directly to the Town’s citizenry, were more sectarian, and less inclusive, than anything this Court sustained in Marsh. For those reasons, the prayer in Greece departs from the legislative tradition that the majority takes as its benchmark. (internal citations and footnote omitted).”
In sum, Town of Greece dramatically alters the landscape for evaluating the permissibility of legislative prayer invocations. Several legal lessons seem clear:
The Court will be broadly tolerant of religious legislative invocations, even those that explicitly favor a single religion.
No Justice of the Court undertook to apply Lemon v. Kurtzman or the Endorsement test to this case, although Justice Breyer cited Lemon favorably, but only for the rationale of that case and not for its famous three-pronged (secular purpose, effect of enforcing or prohibiting a religious practice, excessive entanglement between religion and government).
Five Justices of the Court accepted the idea that examination of legislative prayer’s historical antecedents is a reasonable measure by which to gauge its permissibility. Indeed, the entire Court reaffirmed the vitality of Marsh v. Chambers which first approved legislative prayers.
Seven Justices hold to the view that even intangible coercion in legislative prayer may, in a future case, violate the Establishment Clause.
How does this impact Virginia and North Carolina local goverments?
The Fourth Circuit has previously handed down what is essentially a non-sectarian mandate in Joyner v. Forsyth County, 653 F.3d 341 (4th Cir. 2011), and similar cases. This decision has been problematic for local governments, and has lead to reviewing and editing of prayers, and instructing religious leaders not to pray to their chosen deity. The Town of Greece v. Galloway opinion seems to overrule the notion that sectarian language and references to a specific deity is a problem, so long as overall policy is non-discriminatory and the prayers are neither proselytizing nor denegrating, taken as a whole. It may well be that the non-discriminatory policy of the local government in Forsyth County, very similar to the Town of Greece policy, might well pass muster if considered under the new U.S. Supreme Court test in Galloway for legislative prayer.
Local and State government entities with legislative functions ought to examine their procedures and policies in connection with religious invocations in light of Town of Greece and consider well this new opinion’s effect on Forsyth County and other Fourth Circuit cases addressing legislative prayer. This is a big change in this area of law.