At the beginning of November, the Supreme Court heard oral arguments (transcript) in Town of Greece v. Galloway, a lawsuit that involves a challenge to a municipalities practice of beginning each town board meeting with prayer. Town of Greece is the most significant challenge to such practices since the Supreme Court’s 1983 decision in Marsh v. Chambers. The case forces the Supreme Court to confront a fundamental question about the separation of church and state, and its decision will reshape First Amendment Establishment Clause doctrine and significantly impact many long-standing government practices that have religious connotations.
Greece, New York (“the Town”) is a town of nearly 94,000 residents, located just outside the city of Rochester, in Monroe County. The Town is governed by a board that, under New York state law, exercises legislative, executive, and administrative powers. Town residents are encouraged (and, in some cases, required) to attend board meetings. Before 1999, the Town opened board meetings with a moment of silence; in 1999, however, John Auberger, the elected Supervisor of the Town, replaced the existing practice with the practice of starting each board meeting with prayer. After the change, the Town followed an informal procedure that resulted in mostly Christian prayers.
In 2007, two residents who frequently attended board meetings – Susan Galloway and Linda Stephens – complained about the prayer practices. They argued that the prayers “aligned the town with Christianity” and that they felt coerced to participate, something that, as non-Christians, made them feel isolated during board meetings. The Town responded by claiming that anyone, regardless of faith, could volunteer to recite a prayer, and that the town was not trying to exclude anyone. But in February 2008, Galloway and Stephens sued the Town in federal court, arguing that the prayer policy violates the First Amendment’s prohibition against the establishment of religion.
The First Amendment’s Establishment Clause cannot be reduced to a single principle. But if there is a single premise that has animated the Supreme Court’s approach over the past fifty years, it would be the Neutrality Principle. Or, as the Court noted in McReary County, Ky. v. ACLU of Ky. (2005), “the principle that the “First Amendment mandates government neutrality between religion and religion, and between religion and non-religion.'” (quoting Epperson v. Arkansas (1968)). To this rule, there is but one official exception: the Supreme Court’s 1963 decision in Marsh v. Chambers.
The precise issue in Marsh was the constitutionality of Nebraska’s practice of having a hired chaplain offer prayers at the beginning of legislative sessions. From the perspective of the Neutrality Principle, the legislative chaplaincy in Marsh was clearly unconstitutional. Legislative chaplaincies are “official, institutional, clerical, paid, statutorily authorized, continuously operating, longstanding, and undeniably religious” – in other words, the very sort of favoritism the Neutrality Principle always condemned. But there was, of course, another side of the story. Such chaplaincies, in both the states and in the federal government, were long-established traditions.
In Marsh, the Court was forced to confront its stated principles and the practices that it had long condoned. Marsh presented a situation in which it was politically impossible to strike down Nebraska’s legislative chaplaincy but legally impossible to uphold it. The immovable object had met the irresistible force.
Ultimately, the Supreme Court upheld the chaplaincies and backtracked on the Neutrality Principle. The Court wrote the opinion as a straightforward application for what it considered to be undisputed history. Chief Justice Burger concluded that “the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment,” and called chaplaincies “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”
That was essentially the end of the opinion. And in deciding the case as it had, the Court, for the first and only time in its history, granted government the unambiguous judicial sanction to speak religiously. Marsh differs from other Establishment Clause cases (e.g., the Ten Commandments display approved in Van Orden v. Perry (2005); the Christmas tree and menorah approved in County of Allegheny v. ACLU (1989); and the crèche approved in Lynch v. Donnelly (1984)) in a fundamental respect. In each of these cases, the Supreme Court approved the displays on the theory that they were secular (at least, more secular than religious). In Van Orden, for example, Justice Breyer argued that the display of the Ten Commandments “communicates not simply a religious message, but a secular message as well.” But the Court’s opinion in Marsh made no such claim – the Court concluded that legislative prayer, though religious, did not violate the Constitution.
In Town of Greece, the Supreme Court will revisit its opinion in Marsh. The Town and its supporters argue that its practice of opening board meetings with prayer fits squarely within the tradition of legislative prayer that has continued in federal and state governments to this day, a practice that was acknowledge and upheld as constitutional by the Supreme Court in Marsh. Galloway, Stephens, and their supporters say that Marsh should not apply in this case. Because prayer is an integral part of board meetings, citizens who have business before the board (e.g. to seek zoning changes or business permits) are effectively coerced into participating in a religious ceremony. In contrast, they argue, the Nebraska legislature in Marsh did not require attendance during its opening prayer as a condition of receiving public benefits. In making this argument, Galloway and Stephens are attempting to walk the fine line between political sense and legal precedent.
It is unlikely, therefore, that the Court will overturn Marsh. Rather, the outcome in Town of Greece hinges on how the Court interprets Marsh. The Court could read Marsh broadly and determine that it insulates legislative prayer from judicial review. Such a conclusion would favor the Town. Alternatively, it could interpret Marsh narrowly and hold that legislative prayer is constitutional only in certain contexts. Although such a ruling would not mean that all prayer by government bodies is unconstitutional, it would mean that such practices would be subject to heightened scrutiny. Such scrutiny would likely require some examination of participants’ freedom to attend meetings or the religious content of any prayer, factors that would tend to favor Galloway and Stephens. Or the Court could simply determine that Marsh is inapplicable.
Regardless, the Supreme Court should overturn Marsh. The duration and extent of a historical practice do not render it constitutional. The Court has recognized this salient fact before. In Loving v. Virginia (1967), for example, the Court correctly rejected the idea that a long history of anti-miscegenation could limit the right to marry. And in United States v. Windsor (2013), the Court protected the rights of gay citizens in spite of the long history of legal oppression.
A longstanding practice can simply be a longstanding violation, not a valid exercise of government power.
It is often argued, however, that modest deviations from the Neutrality Principle make a great deal of political sense. Better to let mild religious endorsements stand, like a town holiday display or a public school graduation prayer, rather than face the public backlash that would follow from striking them down. This argument has undeniable force; indeed, it has been advanced by some of the most distinguished voices in constitutional scholarship. But it is also severely flawed.
When the government speaks religiously, it becomes entangled in a continual set of discretionary religious choices. In the context of legislative prayer, as in Town of Greece, this means battles over fundamental issues of religious truth. What is the proper type of religious message? And who is the proper type of person to deliver it? Different communities will decide these issues differently. A homogenous community will tend to embrace religious exclusivity and reject ecumenism; a diverse community will tend to do the opposite.
But in either case, certain faiths, traditions or beliefs will have to be rejected. And with each decision, the government sends a message: these are proper religious beliefs, and those who disagree are wrong. Justice O’Connor stated this problem well in Lynch: “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”
In Town of Greece, the Supreme Court has the opportunity to return to its established legal principles. As James Madison remarked in The Federalist, “Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity . . . ?” The Supreme Court’s decision in Marsh represents a “blind veneration for antiquity” that is unique and unjust, and the Court should abandon it.
Freedom is always a wok in progress.