In 1999, when John Auburger was elected supervisor of the Town of Greece, he decided to introduce a change of policy. Instead of opening the Rochester, New York, suburb’s monthly town board meetings with a moment of silence, Auburger invited a rotating slate of local religious leaders to give an invocation. For the following nine years, every chaplain who delivered the opening prayer was a Christian. In February 2008, two Greece residents, Susan Galloway and Linda Stephens, sued the town, arguing that the prayers violated the First Amendment by endorsing Christianity.
On November 6, the case, Town of Greece v. Galloway, will go before the Supreme Court. It’s the first time in three decades that the Court has taken up a case on legislative prayer. In Marsh v. Chambers, a 1983 case that tackled the constitutionality of prayer before legislative sessions, the Court upheld the practice of using taxpayer funds to pay state chaplains.
The ruling in Marsh protects legislative prayer; such practices, the justices decided, are deeply woven into American history and should not be dislodged. Congress is permitted to open its sessions with an invocation and the Supreme Court can start each day of arguments with “God save the United States and this Honorable Court!" But municipal prayer—and, particularly, openly sectarian prayer—is trickier. There is, at least according to church-state separationists, a qualitative difference between “Jesus Christ save the United States” and “God save the United States,” and the Town of Greece is on the wrong side of the line. In the ruling that is currently being appealed, the Second Circuit Court of Appeals rejected the Town of Greece’s prayer practice using the “endorsement test,” writing, “the steady drumbeat of often specifically sectarian Christian prayers … associated the town with the Christian religion.”
Often promoted by former Supreme Court Justice Sandra Day O’Connor, who left the bench in 2005, the “endorsement test” asks judges to determine whether a “reasonable observer” would believe the government was either endorsing or condemning religion in a particular situation. The endorsement test goes too far for many conservatives, who say it unfairly limits government officials’ right to religious expression. But O’Connor, who was no liberal during her time on the Court, insisted that the endorsement test is necessary to protect religious minorities. People exercising their First Amendment rights shouldn’t feel like political outsiders because they don’t follow the government’s sponsored faith.
It seems likely, given the Roberts Court’s history on establishment-clause cases, that the ultimate ruling in Greece v. Galloway will split with the second circuit. In 2010, the Court voted 5-4 in favor of a congressional land-transfer scheme allowing an eight-foot-tall Christian cross to remain standing in the Mojave National Preserve. In the majority decision, Anthony Kennedy, the Court’s perennial swing vote, argued, “The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm.” The question is whether the court will rule narrowly—using Marsh, the 30-year-old precedent for legislative prayer to overturn the second circuit’s decision—or broadly. It’s a long shot, but if the four conservative justices, who would presumably like to expand religion’s influence in the public square, can marshal the right-leaning moderate Kennedy to their side, they may have enough votes to throw out the endorsement test entirely.
An opinion striking down the endorsement test would have broad ramifications for the kinds of religious speech and symbols that are permissible in government contexts. Steven Smith, a professor of law at the University of San Diego, believes this would provide much-needed clarity about the role that courts are supposed to fill. “Governments may say stupid things or offensive things, but the Constitution doesn’t regulate that,” he says. “There’s no way the Supreme Court can regulate them without making a mess of it. It would be better to quit making false promises about government not saying things about religion that will be alienating to some people.”
“It could end up being a big nothing, or a bombshell,” says Jessie Hill, a professor of law at Case Western Reserve University.
Greece v. Galloway would be a strange case for such a precedent-shaking outcome. The facts of the suit are messy: It’s hard to tell whether the Town of Greece deliberately excluded non-Christian religious leaders from giving the prayer, or if bureaucratic incompetence was responsible for the all-Christian lineup. Just before Galloway and Stephens filed their lawsuit, in January 2008, a Jewish man was invited to give the invocation. Later in the year, as litigation loomed, he gave the prayer a second time, and the leader of a Baha’i temple opened another meeting. But overall, non-Christian prayers were scarce. The town did make a half-hearted stab at expanding its catalog of approved chaplains in 2009. According to the plaintiffs’ brief, the list included several Jewish cemeteries.
The plaintiffs’ demands are surprisingly modest. They are not trying to unseat the longstanding tradition of legislative prayer. Instead, they want the Town of Greece to adopt a nondenominational prayer—to avoid running afoul of the “endorsement test”—and take steps to ensure audience members don’t feel pressured to participate. Greg Lipper, senior litigation counsel for Americans United for Separation of Church and State and an attorney for the plaintiffs, explains that municipal gatherings like the Town of Greece’s monthly board meetings are mandatory in a way that legislative sessions are not. At the meetings, new police officers take their oaths of office. Citizens appear before the board of supervisors to petition to rezone their property or obtain a small-business permit. High school students often attend, to receive credit for a state civic-participation requirement. The prayers violate the First Amendment, Lipper says, not just because they put the weight of the state behind a particular religious sect; they force attendees to join in. “The guest chaplains have asked the audience to join in the prayers, to bow their heads, to stand,” Lipper says. “The pressure you’re going to feel to participate is significant.”
Lawyers for the Town of Greece say the prayers are well within the bounds of the First Amendment. Praying before municipal meetings, they argue, is functionally the same as praying before Congress; if the Supreme Court restricted Greece’s invocations, it would open the door to a full-on assault on the storied tradition of legislative prayer. “If someone is merely offended by observing something religious—well, what do we do?” says David Cortman, senior counsel for the Alliance Defending Freedom and an attorney for the town. “Go to Washington, D.C. and start sandblasting our monuments to get rid of our country’s religious heritage?”
As seems, increasingly, to be the norm on the Roberts Court, most of the arguments in the case are directed at Kennedy, whose concerns tend to center around coercion. He’s certainly not wedded to the endorsement test; in a 1989 decision involving a nativity scene on public property, Kennedy proposed an alternative “no-proselytizing” test that would permit religious symbols like a crèche, as long as they don’t actively advance the interests of a particular religious sect. The Obama administration filed a “friend of the court” brief in support of the Town of Greece—an odd choice that even the most zealous Supreme Court watchers were hard-pressed to explain—arguing that while the prayers were plainly sectarian, they were not coercive enough to violate the First Amendment because they did not involve proselytizing or denigrating a particular faith.
The plaintiffs are taking a different tack that also seems calculated to snare the Kennedy vote, by emphasizing the fact that children are often present at Greece’s municipal meetings. In the past, Kennedy has taken hardline stances against school prayer, saying that children are less psychologically able to withstand the pressure to conform to activities like group prayer. But Rick Garnett, a professor of law and political science at the University of Notre Dame, says that’s a stretch, even for Kennedy. “Sure, there are children who come to municipal government meetings, but there are a whole lot of tourists and children who come to Congress,” he says. “I don’t think the Court will want to take that vague idea of peer pressure as coercion and expand it beyond the school context.”
If the coercion argument doesn’t appeal to Kennedy, he could tip the scale toward a ruling in favor of Greece.
Although the plaintiffs and the Town of Greece are hoping for a decision that rules decisively in their favor, the outcome is likely to be more mixed. If the Court sides with the town but chooses not to overturn the endorsement test, it will give local governments a little more leeway to pray before meetings, but mostly preserve the status quo. The main difference would be that lower-level judges would no longer have the power to decide whether a prayer is too Christian. From Garnett’s perspective, this is a good thing. “The better approach and what they’re likely to say is, as long as the selection criteria for who’s giving the prayer is neutral, and the prayer isn’t offensively proselytizing, we’re not going to count the number of times that Jesus or Allah is mentioned,” he says.
Hill is more apprehensive. “It’s almost inevitable that once you let the government speak religiously, it will speak in a very Christian way,” she says. “I think that underestimates the degree to which non-Christians feel excluded by explicitly Christian speech. The conservative justices on the Court just don’t see it that way at all. They’re completely blind to that problem.”