Written by Don Byrd
What exactly did the Supreme Court say about legislative prayer in its Town of Greece v. Galloway decision?

Below is something of a guided tour of the Court’s reasoning regarding the key questions surrounding government invocations. There are plenty of extensive quotes from the majority and dissenting opinions so you can know exactly what they said and didn’t say.

Here are the 7 things I think you should know about this important church-state decision.

1. All 9 justices agree that legislative prayer is constitutional.
Importantly, Town of Greece was not a decision pitting pro-prayer justices against anti-prayer justices. There was no dissenting opinion from any member of the Supreme Court arguing that any and all prayer at the opening of legislative meetings violates the separation of church and state.

The Supreme Court in Marsh (1983) declared constitutional the practice of chaplain-led invocations to open sessions of a state legislature. While the majority, concurring and dissenting opinions issued Monday disagreed about what Marsh means, no justice suggested overturning Marsh, or argued that it was wrongly decided.

Here is Justice Kennedy in Town of Greece writing for the 5-4 majority:

[L]egislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and ex­presses a common aspiration to a just and peaceful society. … The Court has considered this symbolic expression to be a “tolerable acknowledgement of beliefs widely held,” … rather than a first, treacherous step towards establishment of a state church.

And here is Justice Kagan, writing for the 4 dissenting justices, but agreeing that legislative prayer is constitutional expression (my emphasis):

[B]efore I dispute the Town and Court, I want to give them their due: They are right that, under Marsh, legislative prayer has a distinctive constitutional warrant by virtue of tradition. As the Court today describes, a long history, stretching back to the first session of Congress (when chaplains began to give prayers in both Chambers), “ha[s] shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.’” … Relying on that “unbroken” national tradition, Marsh upheld (I think correctly) the Nebraska Legislature’s practice of opening each day with a chaplain’s prayer as “a tolerable acknowledgment of beliefs widely held among the people of this country.”

So, despite what you may have heard, this case was never about whether the First Amendment permits the government to open meetings with prayer. It does. Neither the plaintiffs in this case, the appeals court below, nor any of the justices of the Supreme Court argued to the contrary.

And that’s not all they agreed on…

2. All 9 justices agree that the First Amendment places limits on legislative prayer practices and policies.
Just as importantly, no justice in Town of Greece argued that the First Amendment permits any and all imaginable invocation practices to open government meetings. In other words, the 1983 ruling in Marsh has its limits.

Here is Justice Kennedy, writing for the majority, suggesting what those limits might look like:

The relevant constraint derives from its place at the opening of legislative ses­sions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation’s heritage. Prayer that is solemn and respectful in tone, that invites law­makers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. 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.

Later, writing for only 3 justices (Thomas and Scalia declined to sign on to this section of the opinion), Kennedy added another potential constraint:

If circumstances arise in which the pattern and practice of ceremo­nial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. … Courts remain free to review the pattern of prayers over time to determine … whether coercion is a real and substantial likelihood.

In his concurring opinion, Justice Alito suggests yet another constraint. He notes that if the Town of Greece’s failure to include representatives of area Jewish synagogues in its list of invited clergy was “done with a discriminatory intent,” he would “view this case very differently.”

Justice Kagan emphasized that the limits imposed by Marsh as envisioned by the dissenting justices are modest and easily achievable.

What the circumstances here demand is the recognition that we are a pluralistic people too. When citizens of all faiths come to speak to each other and their elected representatives in a legislative session, the government must take especial care to ensure that the prayers they hear will seek to include, rather than serve to divide. No more is required—but that much is crucial—to treat every citizen, of whatever religion, as an equal participant in her government. And contrary to the majority’s (and Justice Alito’s) view, … that is not difficult to do. If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint.

Likewise, in his separate dissent, Justice Breyer notes that “in a context where religious minorities exist and where more could easily have been done to include their participation,the town chose to do nothing.” (my emphasis)

So, all sides agree the First Amendment limits government invocations in a legislative setting, though they conceive of those limits differently. The majority emphasizes that the prayers must not over time demonstrate a pattern of proselytizing or denigration of another faith. Justices in the majority also suggest that intentional discrimination in applying the policy, or coercing the public into participating in the prayers, would cross the line.

When it comes to what constitutes coercion and proselytizing, or what steps the First Amendment requires of government to avoid them, the Court sharply disagreed.

3. The Court rejected the idea that governments must require or encourage prayer-givers to offer nonsectarian invocations.
Ever since Marsh, many courts adopted a kind of compromise to accommodate both the historical American tradition of legislative prayer and the promise that government will not favor one religion over another. So long as legislative prayers are not, they said, sectarian – that is – so long as they were inclusive and not particular to one faith – the practice remains lawful. Nonsectarian prayers, then, could be ceremonial and acknowledge the importance of faith in the lives of many Americans without showing favoritism.

This compromise served us well for decades by honoring the principle of government neutrality while also recognizing the traditions the Court emphasized in Marsh. On Monday, in Town of Greece, perhaps the most important ruling of the case is the Court’s determination that Marsh requires no such compromise.

The First Amendment, the Court said, permits governments to allow sectarian invocations to open legislative meetings. Justice Kennedy’s majority opinion offered a few reasons why they refused to adopt the nonsectarian approach. Justice Kagan, in her dissent, responded to each:

a. Nonsectarian is too hard to define:

Justice Kennedy, for the majority:

The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian. Honorifics like “Lord of Lords” or “King of Kings” might strike a Christian audience as ecumenical, yet these titles may have no place in the vocabulary of other faith traditions. …  [S]eem­ingly general references to God or the Father might alien­ate nonbelievers or polytheists. Because it is unlikely that prayer will be inclusive beyond dispute, it would be un­wise to adopt what respondents think is the next-best option: permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some.

Justice Kagan, for the dissent, responds:

Priests and ministers, rabbis and imams give such invocations all the time; there is no great mystery to the project.

b. Nonsectarian prayer is inappropriate to enforce:

Justice Kennedy:

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. … 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.

Justice Kagan:

(… [P]roviding that guidance would hardly have caused the Board to run afoul of the idea that “[t]he First Amendment is not a majority rule,” as the Court (headspinningly) suggests; what does that is the Board’s refusal to reach out to members of minority religious groups.)

Justice Breyer, too, was unimpressed with the contention that urging nonsectarian prayer involves government too greatly in religious matters.

[I]t is not normally government’s place to rewrite, to parse, or to critique the language of particular prayers. And it is always possible that members of one religious group will find that prayers of other groups (or perhaps even a moment of silence) are not compatible with their faith. Despite this risk, the Constitution does not forbid opening prayers. But neither does the Constitution forbid efforts to explain to those who give the prayers the nature of the occasion and the audience.

c. Prayers opening the Congress of the America’s Founders were Sectarian in Nature.

Justice Kennedy:

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.

The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking “the grace of our Lord Jesus Christ.”

Justice Kagan counters that Congress is the wrong benchmark:

First, the governmental proceedings at which the prayers occur differ significantly in nature and purpose. The … floor sessions … of the U.S. Congress … are of, by, and for elected lawmakers. Members of the public take no part in those proceedings; any few who attend are spectators only, watching from a high-up visitors’ gallery. … Greece’s town meetings, by contrast, revolve around ordinary members of the commu­nity. Each and every aspect of those sessions provides opportunities for Town residents to interact with public officials. And the most important parts enable those citizens to petition their government. …

Second … the pray­ers in these two settings have different audiences. … (“Consistent with the fact that attending citizens are mere passive observers, prayers in the House are delivered for the Representatives themselves, not those citizens”). …

The very opposite is true in Greece: Contrary to the majority’s characterization, the prayers there are directed squarely at the citizens. Remember that the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing—the 10 or so members of the public, perhaps including children.

4. The Court does not think the First Amendment requires a town like Greece to rotate among clergy from diverse religions.

Justice Kennedy:

The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing.

Justice Kagan emphasizes that a rotating system would cure the constitutional problem:

When one month a clergy member refers to Jesus, and the next to Allah or Jehovah–as the majority hopefully though counterfactu­ally suggests happened here–the government does not identify itself with one religion or align itself with that faith’s citizens, and the effect of even sectarian prayer is transformed.

[A]ll the majority can point to in the Town’s practice is that the Board “maintains a policy of nondiscrimina­tion,” and “represent[s] that it would welcome a prayer by any minister or layman who wishe[s] to give one.” But that representation has never been publicized; nor has the Board (except for a few months surrounding this suit’s filing) offered the chaplain’s role to any non-Christian clergy or layman, in either Greece or its envi­rons; nor has the Board ever provided its chaplains with guidance about reaching out to members of other faiths, as most state legislatures and Congress do.

5. The majority believes the legislative setting renders prayer merely “ceremonial.”
Justice Kennedy:

In the town of Greece, the prayer is delivered during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating. By inviting ministers to serve as chaplain for the month, and welcoming them to the front of the room alongside civic leaders, the town is acknowledging the central place that religion, and religious institutions, hold in the lives of those present. … The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers.

Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be under­stood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs.

Justice Kagan, however, understands that prayer can be, and often is, more significant than mere historic recognition. And that’s a good thing (my emphasis):

Ceremonial references to the divine surely abound: The majority is right that “the Pledge of Alle­giance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ ” each fits the bill. But prayers evoking “the saving sacrifice of Jesus Christ on the cross,” “the plan of redemption that is fulfilled in Jesus Christ,” “the life and death, resurrection and ascension of the Savior Jesus Christ,” the workings of the Holy Spirit, the events of Pentecost, and the belief that God “has raised up the Lord Jesus” and “will raise us, in our turn, and put us by His side”? No. These are statements of pro­found belief and deep meaning, subscribed to by many, denied by some. They “speak of the depths of [one’s] life, of the source of [one’s] being, of [one’s] ultimate concern, of what [one] take[s] seriously without any reservation.” If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different—and, I think, poorer—place to live.

6. Because the Court sees legislative prayer as mere ceremony, it believes adults should understand such invocations are harmless.

Justice Kennedy:

In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum …

Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconsti­tutional imposition as to mature adults, who “presumably” are “not readily susceptible to religious indoctrination or peer pressure.”

Justice Kagan offers a different view:

[T]he not-so-implicit message of the majority’s opinion—“What’s the big deal, anyway?”—is mistaken. The content of Greece’s prayers is a big deal, to Christians and non-Christians alike. A person’s response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity—who that person is and how she faces the world. And the responses of different individuals, in Greece and across this country, of course vary. Contrary to the majority’s apparent view, such sectarian prayers are not “part of our expressive idiom” or “part of our heritage and tradition,” assuming the word “our” refers to all Americans. They express beliefs that are fundamental to some, foreign to others—and because that is so they carry the ever-present potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these reli­gious differences, and so fears too little the “religiously based divisiveness that the Establishment Clause seeks to avoid.” … I would treat more seriously the multiplicity of Americans’ religious commit­ments, along with the challenge they can pose to the project—the distinctively American project—of creating one from the many, and governing all as united.

Kagan also mentioned the BJC’s brief in her dissent, citing the brief in a footnote and writing:

Leaders of several Baptist and other Christian congregations have explained to the Court that “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.”

7. We can and should voluntarily protect what the Supreme Court won’t.

It seems to me there are a few important things worth remembering regarding what the Town of Greece decision does not mean.

First, while local policies that permit legislative prayer are allowed by  the First Amendment, they are not required. Local governments can and should engage in the people’s business without making government-sponsored prayer a part of the agenda. This ruling does not require prayer at government meetings.

Second, while local policies encouraging legislative prayers to be nonsectarian are not required, according to the court, they are still allowed. The majority suggests as an aside that such a rule may be too entangling, but that was not the question before the court in this case.

Lastly, while clergy may be allowed to deliver sectarian invocations at government meetings, there is no requirement that their prayer in fact be sectarian or otherwise divisive.  The Court may not perceive legislative prayers as anything but harmless ceremony. Nothing hinders clergy, however, from recognizing the potential impact of such deeply-felt expressions on the kind of diverse audience likely at a council meeting, and guiding their prayer – if they must – accordingly.

Although not required or precluded, the BJC has often said that a moment of silence is another way– maybe the best way– to acknowledge our religious heritage, solemnize the occasion, permit people to pray — or not — and respect the consciences of dissenters.