What Are the Constitutional Limitations on Prayers at Local Government Meetings?

• Author: Rohr, Marc
• Position: City, County and Local Government Law

In the wake of the U.S. Supreme Court's momentous ruling in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014), does the Establishment Clause of the First Amendment impose any meaningful restraints on the ability of local governments to open their meetings with religious prayers? The Court in Town of Greece itself suggested some such limits, and some recent lower court decisions suggest others, primarily with respect to the inclusiveness of the opportunity afforded to locally represented religions to participate in the prayer-giving process.

The Supreme Court had paved the way for its Town of Greece decision in Marsh v. Chambers, 463 U.S. 783 (1983), which upheld the practice of offering prayers--described as "nonsectarian" and Judeo-Christian (1) --by a paid chaplain at the start of each day of a state legislative session. In so ruling, the Court bypassed the established Lemon test for assessing Establishment Clause challenges, (2) relying instead on the original intent of the framers as revealed by historical practice, particularly the fact that the very first Congress in 1789 adopted the policy of selecting a chaplain to open each legislative session with a prayer. (3) The majority was untroubled by the fact that the Nebraska Legislature had, for 16 years, paid a clergyman of one denomination (Presbyterian) to offer the prayers. For the majority, Chief Justice Burger indicated the point at which the constitutional line might be crossed:

The content of the prayer is not of concern to judges where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other faith or belief. (4) In Town of Greece, the Court made it clear that a city commission would not run afoul of that admonition simply by opening its meetings with prayers that were overwhelmingly and, to a significant extent, overtly (5) Christian in content. Following Marsh, Justice Kennedy, writing for a 5-4 majority, stated that, "[t]he Court's inquiry ... must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures." (6)

Reversing the ruling of the court of appeals for the Second Circuit, the majority concluded that it did. In reaching that conclusion, the majority rejected the challengers' suggested distinction between sectarian and nonsectarian prayers because 1) neither Marsh nor historical practice indicated the necessity for such a distinction; (7) 2) to require that prayers be nonsectarian would force legislatures "to act as supervisors and censors of religious speech;" (8) and 3) "[t]here is doubt ... that consensus might be reached as to what qualifies as generic or non-sectarian." (9) Thus, Kennedy wrote: "Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian." (10)

But, as in Marsh, the majority deemed it appropriate to indicate the circumstances that would presumably cross the constitutional line:

In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content.... If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, ... [t]hat circumstance would present a different case than the one presently before the Court. (11) The challengers argued that had happened at times in this very case, but Kennedy replied by asserting that only a "pattern" of such invocations would have constitutional significance. (12)

Finding that "[t]he principal audience for these invocations is not ... the public but lawmakers themselves," (13) Kennedy also rejected the argument that the town's prayer practice had the impermissible effect of coercing participation by nonadherent citizens in attendance at the town meetings. (14) He was unpersuaded to find otherwise simply because on "several occasions" audience members were asked to rise for the prayer, emphasizing that these requests "came not from town leaders but from the guest ministers." (15) Here, again, Kennedy provided guidance as to conduct that would presumably lead to a different result:

The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. (16) The key remaining issue--and the one that prompted Justice Breyer's dissenting opinion (17)--pertained to the way in which the town selected its prayer givers. Kennedy described the process:

The town followed an informal method for selecting prayer givers.... A town employee would call the congregations listed in a local directory until she found a minister available for that month's meeting. The town eventually compiled a list of willing "board chaplains" who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too. (18) The majority found no constitutional infirmity in these facts. Said Kennedy:

That nearly all of the congregations in town...