The Establishment Clause After Town of Greece v. Galloway

Yesterday, the U.S. Supreme Court decided the case of Town of Greece v. Galloway, which was a challenge to a small New York town's custom of holding Christian prayers before town council meetings. In a 5-4 plurality opinion, the Supreme Court ruled that Town of Greece had not violated the Establishment Clause of the First Amendment. The Christian prayers held before town meetings did not establish (or appear to establish) a state endorsement of religion.

The First Amendment contains several clauses, but the Establishment Clause is the very first one:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

This clause, along with the immediately subsequent Free Exercise Clause, incorporates the Jeffersonian "separation of church and state" philosophy. Simply stated, the idea is that the government should stay out of religion and religion should stay out of government. The first tenet is meant to preserve religious liberty and allow freedom of thought and belief, while the second tenet is ensure that the operations of civil society are open and responsive to all, regardless of individual faith or creed.

Originally, the First Amendment applied only to the federal government, but the Fourteenth Amendment has been interpreted to apply the First Amendment to state and municipal governments as well. Only one current member of the Supreme Court, Clarence Thomas, disagrees with this interpretation. All the others agree that state and municipal governments can't establish an official religion or otherwise endorse one religion to the exclusion of others.

Establishment Clause cases are complicated, and can involve a variety of tests and inquiries to determine if a particular state action (like a law, ordinance, or official display) runs afoul of the First Amendment. Historically, most Establishment Clause challenges arise when governments erect religious monuments or displays on government property, like hanging the Ten Commandments in a courthouse or a nativity scene or cross in a public space. Other challenges have arisen from disputes over state funding for religious schools.

However, public prayer occupies a somewhat different place in the Supreme Court's historical conception of the Establishment Clause. In 1980, a Nebraska state senator named Ernie Chambers sued the Nebraska state treasurer and other parties on the grounds that the legislature's practice of allowing a state-sponsored chaplain to open proceedings with a prayer violated the Establishment Clause. The federal trial court ruled that the prayer was OK but the funding for the chaplain was unconstitutional. On appeal, the Eighth Circuit Court of Appeals ruled that both practices were unconstitutional. The Nebraska treasurer Frank Marsh then appealed to the U.S. Supreme Court.

In 1983, the Supreme Court issued a 6-3 ruling that the practice of prayer before the Nebraska legislature was not unconstitutional. The majority's reasoning: prayer before legislative sessions was a long tradition in the United States and "[t]his unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged." Marsh v. Chambers, 463 U.S. 783, 791 (1983). In the words of the majority opinion, written by then-Chief Justice Warren Burger:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an "establishment" of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

463 U.S. at 792.

This reasoning was a departure from previous methods of Establishment Clause analysis in which certain tests, like the "Lemon Test," were used to determine the purpose and effect of a religious state action. If the purpose of the state action was overtly sectarian, or the effect on the public was the exclusion of other religious beliefs (or nonbelievers), then the state action violated the Establishment Clause. No such inquiry was conducted in Marsh. As Justice William Brennan noted in his dissent:

The Court makes no pretense of subjecting Nebraska's practice of legislative prayer to any of the formal "tests" that have traditionally structured our inquiry under the Establishment Clause. That it fails to do so is, in a sense, a good thing, for it simply confirms that the Court is carving out an exception to the Establishment Clause, rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.

463 U.S. at 796. And so an exception to the Establishment Clause was carved out for "legislative prayer."

So, fast-forward roughly thirty years to Town of Greece, New York (a northwestern suburb of Rochester). The town council there had a regular practice of opening its proceedings with a prayer by local ministers. For over ten years, every single meeting was opened with a Christian prayer, many of which specifically invoked Jesus Christ as savior and were otherwise explicitly sectarian. Town residents Susan Galloway and Linda Stephens, after first objecting to the prayers in person at the council meetings, filed suit in federal court alleging a violation of the Establishment Clause.

Yesterday, the Supreme Court ruled that no such violation had occurred "consistent with the Court's opinion in Marsh v. Chambers." Town of Greece v. Galloway, 572 U.S. ____, 12-696 (2014). Very simply stated, the Court found that the town meetings were legislative sessions and therefore, under America's "unique history," the prayers did not violate the Establishment Clause.

The plurality opinion, written by Justice Anthony Kennedy, raises some major concerns for anyone who either supports a stricter construction of the Establishment Clause or who happens to be someone (Christian or otherwise) who just wants to participate in government proceedings without being preached to or pressured to participate in a religious ceremony they do not want to participate in.

Some of these concerns are addressed by Justice Elena Kagan's dissent (which was joined by the "liberal" Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor). Justice Kagan, notably, does not challenge the holding of Marsh. In fact, she embraces it, and says that a bright line rule prohibiting all religious prayer from all government proceedings is unnecessary and undesirable. But she does go to great lengths to distinguish Marsh from the case at hand. Justice Kagan argues that the town meetings in Town of Greece weren't mere legislative sessions where direct participation was limited to legislators. The Greece town meetings were council meetings in which regular members of the public petitioned their leaders directly. This difference meant that a preliminary prayer could (and did, according to the Plaintiffs in the case) work to alienate and exclude members of the public from the secular operations of their local government, and "that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government."

Justice Kagan's dissent is well worth your time to read. As is her style, she writes clearly, concisely, and with the gentle guiding hand of an excellent teacher. She writes to an audience much larger than the professional legal community.

Background established, I want to focus on two aspects of the Court's ruling in Town of Greece: coercion and constitutional philosophy. One was addressed by Justice Kagan in her dissent, and the other is more "meta," if you will.


The first area of concern is this passage from Justice Kennedy's opinion, dismissing the argument that a Christian prayer before a town council meeting is coercive to non-believers or other-believers:

Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even, as happened here, making a later protest. In this case, as in Marsh, board members and constituents are “free to enter and leave with little comment and for any number of reasons.” Lee, supra, at 597. 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.” Marsh, 463 U. S., at 792 (internal quotation marks and citations omitted).

You see? If you don't like the prayer, you can just leave the town council meeting. If you don't want to leave, you can "quietly acquiesce." This part of the opinion puts the responsibility on the religious outsiders to adjust how they interact with their government in a way that others do not.

It is American political canon that all are equal and all have equal access to government, regardless of their particular religion or creed. You may worship or not worship any deity you please in most any way that you please, and those religious practices won't effect how the state considers you or interacts with you. Fundamentally, the purpose of the Establishment Clause is to remove religion from the eye of the state. Religion is not a characteristic that should affect how a citizen interacts with government.

But according to the Supreme Court, those who don't like Christian prayers may now exit the room where their government is functioning - or, in the case of Town of Greece, where they directly petition their local government for things they want, such as zoning changes, or funding, or municipal recognition. Perhaps briefly exiting a room is a small inconvenience in the grand scheme of things, but is it one that any American citizen should have to endure at all when participating in their own self-rule?

And what about "quiet acquiescence?" Is it really harmless just because hearing a prayer won't instantly convert those who are "not readily susceptible to religious indoctrination or peer pressure?" How is quiet acquiescence to other people's behavior you find distasteful or inappropriate not a submission to peer pressure?

I strongly doubt that Justice Kennedy, or any other member of the majority of Justices on the Supreme Court, has ever been the one non-believer or other-believer in a large religious family. To a one, all of the current Supreme Court Justices claim a religious affiliation that is either Catholic or Jewish. None self-identify as Muslim, or Buddhist, or atheist, or any other minority religious perspective. I suspect none have ever been an outsider who felt the pressure, the stares, or the negative peer judgment that comes with non-conformance during a group prayer or religious service. Have they ever been a 15 (or 30) year-old having to decide to follow their conscience and not bow their head during Grandma's Thanksgiving prayer when it means facing the withering criticism and distrust that inevitably follows from devout family members?

Perhaps that kind of discomfort is inevitable in a private, family setting, but why should any American have to face similar pressure when interacting with their government in public? Why should Buddhists, or Hindus, or Muslims, or atheists, or anyone else have to leave the town council meeting or quietly acquiesce when nobody else has to do so?

A Christian prayer before a town council meeting may not seem like a big deal to Christians, but what if the opening prayer was Islamic? Or Satanic? Or what if an atheist blowhard stood before the crowd and delivered a forceful denunciation of all religious belief? Or what if those Christians who otherwise see no problem with the prayer weren't Christians? Whether American tradition is Christian specifically or just "religious" in general, the United States is populated by millions of non-Christians and nonbelievers. Is the American system of government truly open and accessible to all or is that just patriotic mythology?

For another outsider perspective on coercion, the Rude Pundit provides a useful one (warning: strong language).

Constitutional Philosophy

In response to the Town of Greece case, the Wall Street Journal editorial page argues that "God hangs on by a vote in the Supreme Court." They paint a picture of a closely divided Court where a slim majority supports religion in the public sphere against an atheist tide opposed to any mention of the supernatural in government:

[T]he close vote shows that public prayer hangs by a single vote at the High Court. The liberal Justices were more than happy to modify a precedent to further restrict even the most passing public reference to a sectarian God.

In typical WSJ editorial fashion, this is cartoonishly inaccurate. The second paragraph of Justice Kagan's dissent, which was joined by all three other "liberal" judges, belies the WSJ's claim:

I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the Court’s decision in Marsh v. Chambers, 463 U. S. 783 (1983) , upholding the Nebraska Legislature’s tradition of beginning each session with a chaplain’s prayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone.

She couldn't have been more clear than that. Contrary to the Wall Street Journal's unending Chicken Little routine, Justice Kagan's dissent actually tells us something far more interesting: none of the nine Justices on the Supreme Court support a "bright separationist line" in which religion must be totally scrubbed from the public sphere.

As of this moment, not a single member of the United States Supreme Court actually supports a nuance-free interpretation of "separation of church and state." Religion does have a place in government in their minds. Not just one church, mind you, but as many churches as you can cram into a legislative chamber. "Pluralism and inclusion" - which means all religions if possible - are welcome in the halls of government.

Conceivably, a government respecting and including all religions would not run afoul of the Establishment Clause because the government could not possibly be accused of trying to establish a state faith. If all are included and none excluded, the state can't be said to be endorsing any one religion over the others. Atheists, as the eternal redheaded stepchildren of American politics, aren't worthy of concern, of course, but everybody else can be comfortable knowing that their faith is not being crushed underfoot by any others.

But let's approach Town of Greece (and also Marsh) from a more practical standpoint. Wouldn't a strict interpretation of the Establishment Clause, one making government a "religion-free zone," prevent disputes such as this? Couldn't Marsh and Town of Greece have been avoided entirely if state legislators and town councils just went about their business without prayer sessions? After all, excluding all religions means the close-minded wouldn't have to begrudgingly tolerate pluralism and inclusion by sharing or ceding the stage to people of other faiths (something I'm sure they hate to do). And nobody would have to get up and leave or quietly acquiesce because they wouldn't have to run a religious gauntlet just to participate in their government.

Perhaps a bright line rule ignores the long religious traditions of this country, but wouldn't such a rule maintain efficient operation of government while never running the risk of imposing certain beliefs on the unwilling? Excluding religion from government would certainly not interfere with anyone's free exercise of belief - all would be free to pray and worship as they see fit outside of formal government proceedings or quietly to themselves at any time. And a bright line rule would certainly eliminate the need for the Supreme Court to waste time reinterpreting the Establishment Clause to fit the whims of whatever ideology currently controls a majority of the seats at its bench. That would be good news for everyone.

Unfortunately for the pragmatists among us, not a single member of the current Supreme Court would embrace such an approach. So, despite the disingenuous warnings of the Wall Street Journal, supporters of government prayer sessions - Christian prayer sessions, specifically - can rest assured that their proselytizing presence will not soon disappear from the halls of state and local power.