Supreme Court Action: The Establishment Clause

The Supreme Court issued three opinions this morning.  The most controversial is likely to be Town of Greece v. Galloway (12-696) as it concerns whether offering a prayer before a municipal meeting from predominately Christian prayer givers violates the Establishment Clause of the First Amendment.  Here’s a spoiler alert:  it does not.  That statement, however, belies the fact that part of the main opinion is plurality and that there are multiple concurring and dissenting opinions.

The Town of Greece (New York) opens its board meetings with a prayer.  The monthly prayer giver is drawn from a congregation within the town limits.  Most of these are Christian denominations.   The town’s policy for selecting a prayer giver does not exclude other creeds.  Susan Galloway and Linda Stephens attended one of the meetings and were offended by the overtly Christian tone of the opening prayer.  They complained that there was no diversity in the prayers.  The Town later opened its board meetings by including prayers given by a Jewish layman,  the chairman of the local Baha’i Temple and even a Wiccan priestess as part of the mix.

Galloway and Stephens sued the Town in federal district court.  They claimed that the Town offended the Constitution by preferring Christian prayers and that the prayers explicitly invoked the name of Jesus and other Christian themes.  They wanted the court to order the town to make the prayers more generic.  The trial court gave summary judgment to the town.  The Second Circuit reversed.  It held that looking at the program in its totality showed that the Town was promoting Christianity through the selection of overwhelmingly Christian ministers and the failure of the Town to seek members of other faiths from outside its borders.  The Appellate Court had no problem with the sectarian nature of the prayers.  The Supreme Court reversed.

It held that the prayers were mostly ceremonial and were not designed to proselytize.  Rather, prayers are meant to convey the seriousness of the legislative endeavor.  It noted that the earliest Congresses after the Constitution was ratified opened with sectarian prayers.  This conveyed an understanding by the founders that the practice was in harmony with the Establishment Clause, citing many examples over time.  Requiring the Town and other legislative bodies to edit the prayers would inject government far more into religion than the current practice.  The Courts would become referees of what language would be allowed.  This is not a desired result.

The Court further rejected the argument that the Town had to search outside its borders for prayer givers as long as it maintained a policy of nondiscrimination in the selection.  The fact that the congregations in Greece were mostly Christian does not reflect a bias on the Town’s part.

Justice Kennedy delivered the opinion of the Court (except Part II-B) and was joined in full by Chief Justice Roberts and Justice Alito.  Justices Scalia and Thomas joined as to all but Part II-B.  Justice Alito wrote a concurring opinion which was Joined by Justice Scalia.  Justice Thomas wrote an opinion concurring in part and concurring in the judgment and was joined by Justice Scalia as to Part II.  Justice Breyer filed a dissenting opinion.  Justice Kagan filed a dissenting opinion and was joined by Justices Ginsburg, Breyer, and Sotomayor.  Got all that?

Due to time constraints I will summarize the other two opinions tomorrow. –Mark

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