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Photo of attorneys E. Kelly Conway, Michael E. Gehring and Stephen G. Harvey

Supreme Court in Town of Greece v. Galloway Approves Overtly Sectarian Prayer Chosen by Local Majority for Public Town Meetings

On Behalf of | May 12, 2014 | Blog, Frontpage Article

The Supreme Court disappoints with its decision in Town of Greece v. Galloway.  The case concerned the constitutionality under the First Amendment’s Establishment Clause of government-sponsored prayer at public town meetings, where over a period of nine years the town engaged in a practice of monthly prayer that can only be characterized as overtly sectarian.  The town invited exclusively Christian prayer givers to open its monthly public meetings and the prayers included frequent and repeated references to Christ, the Holy Spirit, and specific theological concepts.

Both the majority and the dissent agreed that, in general, prayer at local government meetings that invokes divine guidance and support for the purpose of solemnizing the meeting is constitutionally permissible. The difference, according to Justice Kennedy for the majority, is that nothing in the Constitution requires that the prayer be nonsectarian. In fact, asking courts to act as the prayer police would make it worse by asking courts to draw the line at what is sectarian. The majority suggests that there is a line that might be crossed if the prayer were to coerce non-adherence to participate or “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion,” but that’s a pretty low bar that does not prohibit the kind of overtly sectarian prayer at issue in the facts of the case before the Court.

The best part is Justice Kagan’s dissent, which uses the record in the case to paint the facts of a decade of open sectarian prayer at public meeting in the Town of Greece. She evaluates those facts against the principle that the government may not align itself with any particular creed and finds fault in the town’s prayer practice. It “puts some residents to the unenviable choice of either pretending to pray like the majority or declining to join in its communal activity, at the very moment of petitioning their elected leaders.” It “divides the citizenry, creating one class that shares the Board’s own evident religious beliefs and another (far smaller) class that does not.” And it “alters a dissenting citizen’s relationship with her government, making her religious difference salient when she seeks only to engage her elected representative as would any other citizen.”

Justice Kagan responds to the majority’s concern about being drawn into defining the line of what is sectarian by noting that all the town had to do was “let its chaplains know they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint.”

Finally, she answers directly the implicit question—“What’s the big deal anyway?” “[T]he content of Greece’s prayers is a big deal, to Christians and non-Christians alike,” she says, arguing persuasively that overtly sectarian prayer is not part of our heritage and tradition, and that the majority underestimates the power of religious differences to divide communities. “I would treat more seriously the multiplicity of American’s 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.”

The decision breaks almost along religious grounds, with 5 of the 6 Catholic justices in the majority, and three Jews and one Catholic (Justice Sotomayor) in the minority, there being no Protestants on the Supreme Court since Justice Stevens retired in 2010.

Not one justice expressed support for the view that, in a country with more than 40 million estimated nonreligious citizens, even nonsectarian prayer at public meetings could offend the Establishment Clause.

The best political cartoon on the case is the one that shows the guy with the robes and long beard at the city council meeting exclaiming “Pray in your closet with the door shut to your father who is unseen,” a man in the front row saying “who let this nut job in,” and another man reading the bible open to Matthew 6:6. (“when you pray, go into your room, close the door and pray to your Father, who is unseen.”).

I take a particular interest in the case because I drafted an amicus brief on behalf of the National Conference for Community and Justice, an organization that promotes nonsectarian prayer as part of its message of inclusiveness. On a personal note, my 94-year-old mother recalls an instance growing up in Connecticut, in the 1920s, around the time that Al Smith ran for President, when some neighbors associated with the Klan burned a cross in the field above their house. No one told my mother or her family, but they all understood it to be because they were Catholic. I agree with Justice Kagan that the majority underestimates the power of sectarian religion to divide and harm a community.