Supreme Court upholds official prayer at local government meetings

Baptist Joint Committee disappointed in Greece v. Galloway decision;
BJC brief cited in Kagan dissent

A divided U.S. Supreme Court ruled that official prayers opening local municipal meetings may be constitutional, finding them consistent with the historic tradition of chaplain-led prayers before Congress and state legislatures.

The 5-4 decision in Town of Greece v. Galloway (2014) reversed the 2nd U.S. Circuit Court of Appeals and upholds the prayer practice of the Town of Greece, N.Y., despite marked differences between the town’s practice and the one upheld by the Court in Marsh v. Chambers (1983) and practiced in Congress.

The Baptist Joint Committee for Religious Liberty filed a friend-of-the-court brief in the case, opposing the town’s practice of opening municipal meetings with prayer, saying the practice violates the conscience of those who have to be in attendance to participate in the meeting. The Court, however, referred to the “ceremonial” prayers at the beginning of a legislative session offered by invited clergy as compatible with the Establishment Clause based upon historical precedent.

“While the Court ruled for the town under the historic tradition of ceremonial prayer for lawmakers, local governments can – and should – take steps to ensure that citizens are not forced into religious acts at a government meeting,” said K. Hollyn Hollman, general counsel of the Baptist Joint Committee. “It is hard to square a government-led religious practice in a local municipal meeting with the Constitution’s guarantee of equal rights of citizenship without regard to religion.” Read Hollman’s analysis of the legal and practical implications of the decision.

As cited in Justice Elena Kagan’s dissent, the BJC brief says the practice infringes the liberty of conscience of those in attendance. Kagan wrote that the prayer-givers in Greece “appear almost always to assume that everyone in the room is Christian (and of a kind who has no objection to government sponsored worship).” Her footnote points out that the BJC brief says “many Christians believe … that their freedom of conscience is violated when they are pressured to participate in government prayer, because such acts of worship should only be performed voluntarily.”

While the 2nd Circuit held the town’s practice unconstitutional because a substantial majority of the prayers contained “uniquely Christian language,” the Supreme Court noted the lack of intentional discrimination against non-Christians and rejected the challengers’ argument that the Marsh decision contains an implicit ban on sectarian references in official prayers, stating that the prayers are not likely to create a constitutional violation “[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose.”

While the justices were divided on the significance of particular facts, the decision does not create a new constitutional test for evaluating a prayer practice in a government forum. Writing for the majority, Justice Anthony Kennedy stated, “A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.”

The BJC brief says the First Amendment’s Establishment Clause protects the rights of individuals and faith communities to engage in religious worship as a voluntary expression of individual conscience and prohibits the government from appropriating those rights. The Founders and our Baptist forebears understood “that prayer is an expression of voluntary religious devotion, not the business of the government,” according to the brief.

The case involved the Greece, N.Y. Town Board’s prayer practice, which was held unconstitutional by the 2nd U.S. Circuit Court of Appeals. Since 1999, the board has invited local clergy to offer an opening prayer. Two residents – one an atheist, the other Jewish – sued the town, challenging the sectarian government-sponsored prayers as an infringement on their religious liberty rights. According to the 2nd Circuit, a substantial majority of the prayers between 1999 and 2010 “contained uniquely Christian language,” amounting to an unconstitutional establishment of religion.

The BJC brief was joined by the General Synod of the United Church of Christ and the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.).

To view some of the prayers submitted as evidence in the case, visit GreecevGalloway.net/prayers

Here are links to additional resources from the Baptist Joint Committee on the case:

BJC news release on the decision

Full BJC brief (PDF)

BJC news release on argument day

Podcast previewing the case featuring BJC General Counsel Holly Hollman and Staff Counsel Nan Futrell

Recap of oral arguments from BJC General Counsel Holly Hollman

An examination of legislative prayer practices generally from BJC Staff Counsel Nan Futrell

A theological response to Greece v. Galloway by BJC Education and Outreach Specialist Charles Watson Jr.

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